ARCHIVED: Legislative and Regulatory Update - May 1998

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Dateline: March 26, 1998

Mary Alice Baish
Assistant Washington Affairs Representative
Edward B. WIlliams Law Library
111 G Street, N.W.
Washington, DC 20001-1417
202/662-9200 * FAX:202/662-9202

HyperLaw v. West Oral Argument

Bob Oakley attended the March 16, 1998 oral arguments before the U.S. Court of Appeals for the Second Circuit at which West appealed the decision rendered last May by the U.S. District Court for the Southern Districts of New York in HyperLaw, Inc. v. West Publishing Company. That decision invalidated West's ability to copyright the text of opinions, concluding that the enhancements made by West to the opinions, which are government publications, are "trivial." AALL, joined by the other major national library associations, filed an amicus brief last November in support of HyperLaw because of the important issues concerning public access to public domain works of the U.S. government.

James Rittinger represented West at the hearing before Judges Dennis G. Jacobs, Richard J. Cardamone and Robert W. Sweet, arguing that West's enhancements surpass the "modicum of originality" test of the Feist Supreme Court decision. Carl Hartmann, representing HyperLaw. argued that the dates, names of judges and summary statements added by West to the opinions are "facts" and therefore not protected by copyright. Hartmann added that the opinions themselves are in the public domain.

In a parallel case regarding citations, Arthur Miller argued that to copy the page numbers was to copy West's entire template, and would allow someone to recreate an entire volume of West decisions. In reply, arguing for Matthew Bender, Morgan Chu said that only a "crazed lunatic" would do that, and he pointed out that Matthew Bender did not copy West's arrangement of the cases. It is hoped that a decision will be rendered in these important cases sometime this year.

Tally of Co-sponsors for H.R. 3048 and S. 1146

The concerted grassroots lobbying campaigns by the member associations of the Digital Future Coalition (DFC) is paying off. There are now 28 co-sponsors to the Boucher/Campbell bill, H.R. 3048. The pace on the Senate side, for reasons that remain unclear, is much slower. Sen. John Ashcroft (R-MO) in fact sent out another "Dear Colleagues" letter this week that included a side-by-side comparison of his bill, the "Digital Copyright Clarification and Technology Education Act," with the Administration's bill to implement the WIPO treaties, S. 1121. In the letter, Ashcroft noted that the House WIPO implementation bill, H.R. 2281, as reported out of subcommittee earlier this month, would make it illegal to produce or own future generations of VCRs and personal computers because they "might" be used for unlawful purposes. The DFC, in fact, joined the Computer and Communications Industry Association and the Home Recording Rights Coalition in an ad that appeared in the March 9, 1998 issue of USA Today urging the public to oppose H.R. 2281 and to support the Ashcroft/Boucher/Campbell bills. The approach taken in these bills allows the U.S.'s computer and electronic industries to remain free of regulation and targets individuals who commit illegal acts, not technology itself.

At a meeting yesterday, Rep. Rick Boucher thanked AALL for our help in getting new co-sponsors for his bill and for the participation of many of you at district office meetings with members of Congress and their staff. We urgently need more co-sponsors so if you haven't yet sent in your postcards in support of H.R. 3048 and S. 1146, please do so soon. You'll find short sample messages on our web site.

End-of-the-day Opposition to H.R. 2589 and H.R. 2652

Despite long months of negotiations and many proposed draft amendments that would have recognized important concerns of the library community with both these bills, we have no option but to oppose them as they move forward through mark-up to floor action this spring. H.R. 2589, the "Copyright Term Extension Act," would add an additional 20 years to the term of copyright, giving current copyright owners new benefits without providing any meaningful exemption for libraries and archives. In a letter to Chairman Henry Hyde and all members of the House Judiciary Committee earlier this month, Bob Oakley expressed AALL's opposition to H.R. 2652, the Collection of Information Antipiracy Act," noting that it "would afford dangerous sweeping new legal protection to compilations of facts not sufficiently original to merit copyright protection at the expense of scholarship, research and public access to information.

Renewed Progress on Title 44

Finally, some hopeful news about the revision of Title 44. JCP Staff Director Eric Peterson and Kennie Gill, Minority Counsel on the Senate Rules Committee, have finally shared the latest draft legislation with a small group of us here in Washington. We've had extensive meetings this week to discuss and debate various provisions of Chapter 19, the section of the law that relates to dissemination and the depository library program. With a side-by-side comparison of the JCP draft and ours, it's fairly easy to see that many of our provisions have been incorporated word for word into their draft. In some areas, such as permanent public access and the establishment and duties of advisory councils, they have developed very good additional language that provides specifically for the transition period until government wide solutions are achieved. We are still negotiating over the best language for the definitions and are holding firm that the legislation retain the congressional and other designations. That's a battle that seems to be more on the House side than with the Senate. While we seem to be reaching consensus on Chapter 19, we do have major problems with other areas of the JCP's current draft regarding the sales program and printing/procurement provisions involving the Government Printing Office. Check the Inter-Association Working Group's Web site for current updates.

Bringing CRS Reports into the Sunshine

Two bills have been introduced in Congress this year, S. 1578 and H.R. 3131, to expand public access to important legislative information by making the Issue Briefs and Reports published by the Congressional Research Service (CRS) available through the Internet. This promotes the promise made by House Speaker Newt Gingrich at the beginning of the 104th Congress to provide access to more information about the actual deliberations of Congress to all Americans, not just those inside the beltway. At a hearing before the Senate Rules and Administration Committee last month, CRS Director Dan Mulhollan presented a long litany of concerns with this proposal, including that: it would change CRS's mission which is to serve Congress, not the public; it would incur increased staff and technological costs for CRS; by increasing public awareness of the research and analysis prepared by CRS, it would lead to a huge demand for these materials in print formats. The sponsors of these bills, Sen. John McCain (R-AZ) and Rep. Christopher Shays (R-CT), and their staffs are firmly committed to passage of these bills and are working with CRS to iron out their objections. Momentum is building, and there are seven co-sponsors in the Senate and twenty-two co-sponsors in the House. Calls to your representatives urging them to co-sponsor these important public access bills would really help!

1998 James Madison Awards

As a member of ALA's Government Information Subcommittee, I was pleased to make three nominations for this year's award that the Coalition on Government Information approved. The four recipients received beautiful Freedom of Information Day plaques at the March 16, 1998 ceremony at the Library of Congress. Former Superintendent Wayne Kelly was honored as a strong promoter of access to government information and a defender of the public's right to know. Eliot Christian of the U.S. Geological Survey was honored for his personal vision and commitment to developing the Government Information Locator Service (GILS) that has become a model standard not just for the federal government but also for state and foreign governments. The National Library of Medicine (NLM) was also recognized for their decision last summer to provide no-fee public access to the MEDLINE database. NLM Director Donald A.B. Lindberg, M.D. noted in his remarks that usage statistics have ballooned from 7 million to 70 million users, with about one third of these coming from the general public. In addition to these three recipients, Pulitzer Prize-winning journalist Ben Bagdikian who helped bring the Pentagon Papers into the light of day was honored for recognizing the fundamental responsibility of the government to provide citizens with the information they need to make intelligent decisions that affect their lives.

March Madness Hits the Legislative Scene

March Madness has hit Washington in a big way, and I don't mean just the NCAA college basketball games we've been enjoying. This session of Congress is a short one, with the fall elections looming, and the legislative pace is speeding up in many areas of concern to the law library community. We are strongly committed to getting revisions to Title 44 enacted, but much hard work and negotiations remain. We also need lots more grassroots support from you for S. 1146 and H.R. 3048, and in opposition to the term extension and database protection bills. As activity intensifies, Bob and I hope that we can continue to count on each and every one of our members to respond quickly to the AALL Action Alerts we will be sending out during the next few months. As always, our thanks for your willingness to assist our efforts!

Making March even a bit more hectic for me were two presentations that may be of interest to you. On March 5th I enjoyed wonderful Southern hospitality at the regional Seventh North Carolina Serials Conference in Chapel Hill, N.C., where I addressed the topic of Electronic Government Information: Nailing Cyber-Jello to the Wall . And on March 19th, I represented the Inter-Association Working Group as a speaker at the 15th Annual FLICC Forum on Federal Information Policiesheld at the Library of Congress. On a panel with JCP Staff Director Eric Peterson, I presented the Library Perspective on the reform of Title 44.

On April 24, 1998 Bob Oakley will deliver the keynote address at the Intellectual Property Rights Conference on Copyright in an Educational Environment at the Southern Illinois University in Carbondale. You'll find his presentation as well on our Web site.