Washington Brief - February 2004

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By Mary Alice Baish

Dateline: December 5, 2003

AALL Opposition to New Database Legislation
My November column alerted you to the Labor Day release of a draft discussion database bill that was in fact introduced on October 8, 2003 as the Database and Collections of Information Misappropriation Act of 2003 (H.R. 3261). On October 16th, the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property chaired by Rep. Lamar Smith (R-21-TX) held a mark-up and, by a 10-3 vote along strict party lines, approved a substitute manager's amendment. The manager's amendment includes a new exclusion for any accredited nonprofit postsecondary educational institution. However, this exclusion is very narrowly crafted and the bill makes clear that its provisions, including the new exclusion, do not preempt license terms. Thus, a database publisher could attach shrink-wrap or click-on license terms requiring a university to waive the exclusion from liability.

During the mark-up, Rep. Rick Boucher (D-9-VA) introduced several amendments, including one that would exempt "any legal materials produced by a Federal court, including opinions, judgments, and rules of practice, and any legislative materials produced by the Congress, including bills and resolutions, committee reports, and floor statements." Rep. Boucher's amendments all failed, again along strict party lines, with the Republican members in sync with Judiciary Chairman James Sensenbrenner's desire to move this very contentious bill forward. The good news is that a full committee hearing for H.R. 3261 that had been scheduled to occur within days of the subcommittee mark-up was canceled. The bad news is that we expect to see action on this bill in early January. We will continue to oppose H.R. 3261 because we believe that the open sharing of information is fundamental to our nation's advancement in knowledge, technology and culture. The bill will lead to the growing monopolization of the marketplace for information, where the ability to use facts is increasingly controlled by a small number of international publishing houses.

Quick Update on FY 2004 Appropriations Bills
The first session of the 108th Congress will likely end next week without the enactment of the FY 2004 omnibus appropriations act (H.R. 2673) that now includes seven of the 13 annual appropriations bills. The House is expected to vote on the omnibus bill early next week but the Senate appears unwilling to act on it before January. We were involved in lobbying efforts on three FY 2004 appropriations bills that are now part of the omnibus package. I'm please to report that the full funding request of $35.9 million for the National Archives and Records Administration's Electronic Records Archive (ERA) was restored during the conference on H.R. 2989, the Transportation, Treasury, and Independent Agencies Appropriations Act for 2004. The ERA is critically important as agencies across all three branches of Government rely increasingly on creating electronic records rather than publishing them in print. The progress made by the ERA must not be interrupted, or the loss in terms of public access to electronic government will be irreparable. As a result of a change in subcommittees this year following the creation of the Department of Homeland Security, the National Archives was put under the Senate Appropriations Subcommittee on Transportation, Treasury, and General Government. Ranking Member Patty Murray (D-WA) had eliminated funding for the ERA in order to offset additional funding for AMTRAK. Fortunately, the House Appropriations Committee had fully funded the ERA and at the end of the day, House conferees prevailed.

We also supported two House amendments to repeal provisions of the USA Patriot Act. Both, unfortunately, were dropped during conference committee. The first was an amendment by Rep. C.L. "Butch" Otter (R-1-ID) to the FY 2004 appropriations bill for Commerce, Justice, State, and the Judiciary (H.R. 2799). The Otter amendment would have barred law enforcement from spending any funds to perform "sneak and peak" searches unless the targets are told in advance. The second was an amendment by Rep. Bernie Sanders (I-VT) to the FY 2004 Foreign Operations Appropriations bill that would have prevented any funds from being used to search a library or bookstore under Sec. 215 of the Patriot Act. Sec. 215 allows law enforcement to get an order to search library or bookstore records, including circulation records, Internet usage records, and computer hard drives, of anyone whom they believe has information that may be relevant to a terrorism investigation, without having to show that the person whose records are sought is involved in criminal or terrorist activity.

The Washington Office issued action alerts on these two important issues and we are most grateful to all who responded. You played a major role in restoring full funding for the ERA and while neither House amendment on the Patriot Act made it through the process this year, your help in educating your House representative on these issues will benefit us next year. Thank you very much!

2004 AFFECT Legislative Agenda
My November column also summarized the decision by the National Conference of Commissioners on Uniform State Laws (NCCUSL) to discharge the standby committee of the Uniform Computer Information Transactions Act (UCITA) and to step back from actively promoting UCITA in the states. Nonetheless, our anti-UCITA coalition, Americans for Fair Electronic Commerce Transactions (AFFECT), continues to be concerned not only about the possibility of more UCITA introductions next year but also about proposed amendments to Articles 1 and 2 of the Uniform Commercial Code (UCC). These proposed changes have already been approved by NCCUSL and the American Law Institute, and they relate directly to UCITA.

We oppose proposed language in the UCC Article 1 revision regarding choice of law. It would permit a software licensor to choose the law of any state to apply to the license. Current law requires that there be a "reasonable relationship" between the law of the state chosen to govern the contract and the parties to the contract. The current proposal removes this "reasonable relationship" requirement and would allow a licensor to choose the law of any state to govern the contract. Enactment of this revision would permit software vendors to impose UCITA as enacted in Maryland or Virginia on libraries, educational institutions and businesses in any state that adopts it.

We oppose proposed changes in the UCC Article 2 revision relating to the definition of "goods." One of the proposed amendments takes "information" (not defined in the Article) out of the definition of "goods" so that the balanced principles of UCC Article 2 would not apply. There would be increased risk of application of UCITA by analogy, even in states where it has not been enacted. The amendments also include new provisions on assent that could allow contract terms, such as warranty disclaimers, to be binding even if the customer first sees them only after purchase and delivery of the product.

Law librarians have been instrumental in stopping UCITA in many key states since 2001, and by now I hope you're wondering what you can do to help our efforts next year. We need eyes and ears in state capitols to alert us to any activity regarding these proposed changes to UCC Articles 1 and 2 so that AFFECT can respond immediately. In addition, we will be stepping up efforts to enact anti-UCITA "bomb-shelter" legislation in a number of states next year. Four states--Iowa, West Virginia, North Carolina and Vermont--already have enacted defensive legislation to shield businesses, libraries and consumers from the choice of law and choice of forum provisions of UCITA as enacted in Maryland and Virginia. AFFECT has developed model "bomb-shelter" language but we've found that passing stand-alone legislation is difficult. So in addition to keeping an eye open for revisions to UCC Articles 1 and 2 in your state, please also be on the lookout for any consumer protection bill or legislation dealing with the Internet or electronic law to which a bomb-shelter could be attached. Please contact me if you have any information on these issues in your state. Thank you!

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

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