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Information Policy Online Vol 01 No 01
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iiiiii iiiiii a INFORMATION POLICY ONLINE
ii ii aaa
ii ii aaa An Internet Newsletter
ii ii aaa published by the
ii ii aaaaaaaaa Information Industry Association
ii ii aaa 555 New Jersey Ave., N.W.
ii ii aaa Washington, DC 20001
ii ii aaa Internet: <iia.ipo@his.com>
iiiiii iiiiii aaaaaaa Volume 1, Number 1, March 1994
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In this inaugural issue:
[1] About "INFORMATION POLICY ONLINE"
[2] About the Information Industry Association
Will the Real "IIA" Please Stand Up!
[3] Welcome! by Steve Metalitz, IIA/IPO Editor
[4] Giving Uncle Sam the Keys: Administration Embraces
Clipper
[5] Bills to Cut Off Access to DMV Records Greeted
Skeptically by House
Synopsis of IIA Testimony on H.R. 3365,
Driver's Privacy Protection Act, February 4
[6] IIA Proposes Bold Restructuring of Depository Library
System in Senate Testimony
[7] IIA Adopts Flexible Strategy for Telecommunications
Legislation
[8] Compilation Copyright at the Supreme Court: Round 2
in 1994? by Jim Schatz, IIA Proprietary Rights
Committee, and Marla Hoehn, Heins, Schatz and Paquin
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[1] ABOUT "INFORMATION POLICY ONLINE"
INFORMATION POLICY ONLINE (IIA-IPO) is an online newsletter
published on the Internet by the Information Industry Association
and distributed free of charge.
The purpose of the Newsletter is to inform readers of events
and activities affecting information policy, and to present an
information industry viewpoint concerning these events and
activities. The contents of IIA-IPO will be news, views, and
documents. _News_ will be factual briefings on legislative,
regulatory, and programmatic activities at the federal, state,
and local level that pertain to information policy. _Views_ will
be viewpoints on the news: an official IIA position, or other
viewpoints. _Documents_ will be online copies of documents
pertinent to information policy.
The target audience for IIA-IPO is any persons inside or
outside the information industry, members of IIA and nonmembers,
who are interested in information policy.
IIA-IPO is copyrighted by the Information Industry
Association; however, IIA-IPO is distributed without charge and
may be freely reproduced and redistributed. Please acknowledge
IIA-IPO as the source of the information when quoting or
redistributing the newsletter.
TO SUBSCRIBE TO IIA-IPO: Send the message "subscribe" to
<iiaipo-request@his.com>.
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[2] ABOUT THE INFORMATION INDUSTRY ASSOCIATION
THE INFORMATION INDUSTRY ASSOCIATION, founded in 1968,
represents leading organizations involved in the generation,
processing, distribution and use of information. IIA is home
base for businesses offering the innovative products and services
that make up the information marketplace.
IIA's 500 member companies range from small entrepreneurial
enterprises to Fortune 500 firms -- from database providers to
hardware and software manufacturers, telecommunications companies
to financial institutions, print and CD-ROM publishers to
electronic and voice mail and messaging services, and market
research to venture capital firms.
Since its inception, IIA has been the only trade association
in the United States addressing the broad concerns and diverse
market needs of the dynamic information industry. In short, IIA
fosters a responsive and responsible forum for promoting a
competitive and growing information marketplace.
WILL THE "REAL" IIA PLEASE STAND UP!
Recently, the Internet has witnessed some discussion about
another IIA, the International Internet Association. The
Information Industry Association has no relationship with the
International Internet Association.
The Information Industry Association regrets any confusion
that may arise over the two IIA's, but has no intention of ceding
to the International Internet Association the use of the initials
IIA. The Information Industry Association was here first; this
IIA celebrated its 25 year anniversary last October!
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[3] WELCOME!
by Steve Metalitz
Vice President and General Counsel, IIA
and Editor, Information Policy Online
Welcome to the first issue of Information Policy Online!
February is budget season in Washington. The backs of policy
wonks, reporters and lobbyists bend under the weight of volumes
of turgid prose and impenetrable charts, setting forth the
Administration's taxing and spending proposals for the fiscal
year beginning next October. Sighs of austerity and cries of
profligacy fill the air, as various interests seek to put their
spin on the newly unveiled numbers. Pundits take the vital
signs of the plans on Capitol Hill, and eventually the budget's
bird's-eye perspective gives way to the devilish details of how
the public's money will be spent.
This February, things were a bit different. Once again,
forests were sacrificed, and the Government Printing Office
spewed forth budget paper (over 2000 pages this year), but the
budget documents were also distributed in electronic form
(through dial-up access, Internet, and Commerce Department
CD-ROMs). The political messages, too, were a bit different. The
Administration stressed the importance of keeping the deficit
on a downward path, but at the same time it returned to the
theme of "investment in long-term economic growth," calling for
selected increases in spending along with the many proposed
spending cuts.
In true Washington fashion, the White House scooped the
mammoth budget release with the strategic leak to the news media
of a much shorter document: the list of 115 federal programs
President Clinton wants Congress to eliminate this year. Six of
these are library grant programs administered by the Department
of Education. But a closer review of the budget reveals that
programs for information dissemination were not only spared the
ax, but targeted for substantial increases, in the name of
"investment."
Some of the major boosts are contained in a line item called
"National Information Infrastructure." The National
Telecommunications and Information Administration (NTIA), part
of the Department of Commerce, had $26 million to spend this
year in hooking up non-profit institutions with Internet and
other networks. The proposal for next year: $100 million. The
National Technical Information Service (NTIS), also in
Commerce, is supposed to be self-supporting. But the President
wants to appropriate 18 million taxpayer dollars -- more than
one-quarter of the agency's 1994 budget -- for a "one-time pool
of investment capital to help support the electronic
dissemination of data generated by the Federal Government." The
big bucks come under the rubric of "High Performance Computing
and Communications," encompassing a number of federal
initiatives from support for supercomputing to funding of
Internet resources. HPCC spending by seven agencies is slated
to rise 23%, to $1.15 billion, in fiscal 1995. Also
participating in the HPCC largesse is perhaps the biggest single
winner among federal agencies: the National Institute of
Standards and Technology (NIST), yet another Commerce unit,
whose budget will nearly double (to $935 million), partly for
information infrastructure programs.
As the budget ritual unfolded, the U.S. Advisory Council on
the National Information Infrastructure convened its first
public session February 10. This group of two dozen private
sector representatives is (among other things) supposed to help
the government more clearly define the problem that its
information infrastructure spending programs should be targeting.
Not only the Advisory Council deliberations, but also the
spending programs sketched out in the 1995 budget, must be guided
by an appreciation for the value of information content. Once the
glitz and glitter of the exciting new networks, hardware, and
software has faded, content is the deliverable that will mean
the most to the customers of the NII -- whether they are
receiving "universal service" or participating in a true
information marketplace. IIA will be advocating the content
focus in the months ahead.
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[4]
GIVING UNCLE SAM THE KEYS:
ADMINISTRATION EMBRACES CLIPPER
Last April 15, when the Clinton Administration unveiled its
plans to adopt the controversial "Clipper chip" technology for
encrypting government communications, it kicked off a
"comprehensive interagency review of encryption technology."
That review came to an abrupt conclusion February 4, with the
announcement that the Administration will steam full speed ahead
with Clipper.
Specifically, the February 4 decisions included:
- Approval of the "escrowed encryption standard" as a
voluntary Federal Information Processing Standard (FIPS).
Approval came despite virtually unanimous opposition to the
standard from business, academia, and public interest
groups. The Administration dismissed the opposition as
representing "misunderstanding or skepticism."
- Designation of two federal agencies as "escrow agents" to
hold the digital "keys" to every telephone and other
device manufactured with the Clipper chip system. The
National Institute of Standards and Technology (NIST) and a
Treasury Department unit will give U.S. law enforcement
access to communications encrypted using Clipper, upon
presentation of necessary legal documentation (usually a
search warrant).
- Limited streamlining of export control procedures for
encryption products. However, the Administration rejected
the idea of loosening up export controls generally, warning
that in that case encryption would "be used extensively by
terrorists, drug dealers and other criminals."
Even more troubling is the report that the Administration
may support a revived proposal to require redesign of digital
telecommunications systems to facilitate government monitoring.
The proposal, long a pet project of federal law enforcement
agencies, died on the vine during the Bush Administration, but
Clinton Administration support could breathe new life into this
costly idea, which IIA and most other industry and privacy groups
have long opposed. For the record, the Administration set up an
interagency group to "work with industry to ensure that new
digital telecommunications systems are designed in a way that
ensures that [they] do not prevent court-authorized wiretaps."
The next public discussion of the issues may take place at the
March 23-24 meeting of the federal Computer System Security and
Privacy Advisory Board, at which the February 4 announcements
will be reviewed.
Meanwhile, IIA has joined with numerous other associations
in urging support for legislation (H.R. 3627) to liberalize
export control policies on encryption technology. A letter to
Chairman Lee Hamilton of the House Foreign Affairs Committee,
cosigned by groups ranging from the ACLU to the U.S. Telephone
Association, points out that "the main impact of export controls
on crytography today is to limit American citizens' and
corporations' access to high quality privacy protection."
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[5]
BILLS TO CUT OFF ACCESS TO DMV RECORDS
GREETED SKEPTICALLY BY HOUSE
The proposed Driver's Protection Privacy Act "gets
Congress off on the wrong foot," by presuming that records held
by state departments of motor vehicles (DMVs) should be closed
to the public, IIA Vice President and General Counsel Steve
Metalitz told the Civil and Constitutional Rights Subcommittee
of the House Judiciary Committee February 4. Metalitz testified
on the second day of hearings on H.R. 3365, introduced by Rep.
James Moran (D-VA).
The DPPA was motivated by use of DMV records to stalk and
harass citizens. Groups representing crime victims
enthusiastically supported reducing access to DMV and other
records held by state governments. But the hearings also
showcased opposition to the current bill from press groups,
direct marketers, and private investigators, as well as IIA.
Some of these criticisms seemed to strike a responsive chord
with subcommittee members, including Rep. Don Edwards (D-CA),
the panel chair, who emphasized that the House would not rush to
rubber-stamp the DPPA's earlier approval (without any hearings)
by the Senate.
IIA's testimony urged Congress to "target the specific
abuses" of DMV records that have been identified, while
maintaining that "records collected by government should be
presumed public, and generally accessible, unless it is
necessary to restrict public access in order to protect privacy
or achieve a similarly important social goal." IIA also argues
that the DPPA "uses the wrong tool -- criminal penalties -- for
the job it proposes to undertake," and urged Congress to "totally
decouple" any access restrictions from criminal sanctions.
Despite the skepticism expressed by some House subcommittee
members, the DPPA continues to enjoy a favorable prognosis,
since the Senate has already passed a version of the
legislation as an amendment to the crime bill, a "must-pass"
measure in the current Congress. It appears that the House
subcommittee will seek to mark up an alternative measure on DMV
records, perhaps as soon as early March.
SYNOPSIS OF IIA TESTIMONY ON H.R. 3365,
DRIVER'S PRIVACY PROTECTION ACT
FEBRUARY 4, 1994
The Information Industry Association believes
that the DPPA, in its current form, does not strike the right
balance between privacy concerns and fundamental principles of
public access to public records.
Access to public records is important to American businesses
and consumers, as well as serving other important roles in our
democratic society. Among other uses, we rely on records from
state Departments of Motor Vehicles (DMVs), as well as land,
court, voter registration, corporate filing, and other public
records, to make it faster, cheaper and more efficient to --
- extend credit to individuals and businesses;
- detect and combat fraud;
- conduct litigation and enforce court orders;
- undertake "due diligence" investigations before hiring
employees or concluding business deals;
- conduct survey research;
- make siting and land use decisions; and
- undertake marketing efforts.
The DPPA gives short shrift to these benefits because it
treats DMV records as "presumed secret," subject only to listed
exceptions. A "presumed public" approach would be more
consistent with our legal framework for access to public
records. Congress could begin by making it a federal crime to
use DMV records for illegal purposes, which DPPA does not do.
Federal legislation should then focus on specific uses which
are vulnerable to abuse --in the case of DMV records, license
plate look-ups of names and residential addresses. While most
of these are legitimate, Congress could, if necessary, define
which look-ups should be prohibited. This would leave a broad
spectrum of other uses free of unneeded federal restrictions.
Under the DPPA approach, state DMVs will inevitably be drawn
into expensive, time-consuming and intrusive inquiries about the
purposes and motivations of members of the public who seek
access to DMV records. These costs could be reduced, though not
eliminated, by broader exceptions to the access ban. Access for
legitimate purposes could be preserved by clarifying the
exceptions for litigation use, survey research, verification,
antifraud measures, and marketing, including a longer time
period for implementing any "opt-out" systems.
The criminal sanctions of the DPPA, especially the
Senate-passed version, will have a chilling effect on legitimate
uses. Criminal law is the wrong tool for enforcing information
practices rules. DPPA should be decoupled from criminal sanctions
as much as possible.
Under DPPA, the federal government would control areas of
traditional state concern: defining, and regulating access to,
public records. States should have more flexibility to achieve
the objectives of the legislation. If Congress decides sweeping
federal pre-emption is needed, it should also require uniform
treatment of requests for access to DMV records.
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[6]
IIA PROPOSES BOLD RESTRUCTURING OF DEPOSITORY
LIBRARY SYSTEM IN SENATE TESTIMONY
On February 3 and 10, the Senate Committee on Rules and
Adminstration held hearings on Title XIV of H.R. 3400,
legislation to implement the Clinton Administration's National
Performance Review recommendations, and other proposals to
change the role of the Government Printing Office. While much of
the testimony focused on allocation of responsibilities for
government printing, IIA took the opportunity to urge the
Senate to "reinvent" the Depository Library Program to better
meet the needs of information users.
In his testimony on February 3, Public Printer Michael
DiMario argued that a centralized information distribution system
was essential to keep costs of the program down and to ensure
that all documents (including agency electronic documents) are
made available. OMB Deputy Director Alice Rivlin defended the
Clinton Adminstration's position that GPO's traditional monopoly
over federal government printing should be eliminated "by
devolving printing procurement responsibility to the agencies and
by giving the President responsibility for printing policy-making
for the Executive Branch." She stressed GPO's role as a
"value-added service provider" to federal agencies, and
testified that "this model -- GPO as a competitive service
provider in a context where agencies decide how best to carry out
their missions -- should apply to all facets of GPO's
business...". The Administration proposal calls for no immediate
changes in the depository library system.
IIA's testimony at the February 10 hearing addressed H.R.
3400 as introduced and as adopted by the House. IIA Vice
President Steve Metalitz expressed support for the
Administration's proposal to write into law dissemination
policies included in OMB's Circular A-130, but pointed out
several provisions in the House-passed version of H.R. 3400
which are of concern to the IIA, notably those which transfer
lead responsibility for federal information dissemination to
the Library of Congress without any guidance as to how that
institution is to carry out this function. The House-passed bill
would give the Superintendent of Documents a virtual "blank
check" to remedy situations where he believes that agencies are
not providing "adequate access" to government documents.
IIA's testimony went on to outline a model for significantly
reforming the Depository Library Program in response to fiscal
and technological pressures. "The reformed system should be
demand-driven, consumer-oriented, and characterized by choice
and diversity. It should reflect sound information policy
principles, and should empower those most knowledgeable about
the information needs and desires of library users: librarians."
Metalitz urged the Senate to consider a "direct support"
model, in which libraries would use federal funds to acquire
information products directly from federal agencies, from
multi-agency sources, from non-profit or private sector
providers or a combination of sources. The direct support
system, he noted, would give libraries more flexibility to
tailor their government information acquisitions to meet the
needs of their customers; anticipate technological trends that
favor decentralization of information resources; and make
agencies directly accountable to libraries as customers.
Neither of the Senators present for the February 10 hearing --
chairman Wendell Ford (D-KY) and ranking Republican Ted
Stevens (R-AK) --asked many specific questions about IIA's
proposed direct support model for the Depository Library System.
However, it was apparent that neither Senator had much
enthusiasm for either the original or House-passed version of
H.R. 3400. The fate of the legislation, which contains numerous
provisions falling within the jurisdiction of other committees,
remains uncertain.
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[7]
IIA ADOPTS FLEXIBLE STRATEGY
FOR TELECOMMUNICATIONS LEGISLATION
IIA has adopted a flexible strategy to assure that the
information industry remains active in the very fluid atmosphere
surrounding telecommunications legislation on Capitol Hill. The
issue at hand is the definition that Congress will use to
establish pro-competitive safeguards for regional Bell
operating companies that wish to participate in the information
services market. IIA has long supported a broad definition of
"enhanced services" established by the Federal Communications
Commission in 1980. However, none of the bills currently pending
before Congress adheres to this definition. The Senate bill, S.
1822, is better than the House bill in this regard, since the
Senate proposal includes an expanded definition of "electronic
publishing" subject to full safeguards, and provides limited
safeguards for the full range of enhanced services.
House and Senate committees have put the issue on the fast
track, with subcommittee mark-ups in the House scheduled before
March 1. The Senate Commerce Committee began hearings February
23, and plans completion of its bill before the end of March.
IIA will seek the most inclusive definition possible
for information services subject to pro-competitive safeguards
-- even if it should prove impossible to gain the full
protection offered by the "enhanced services" definition. IIA
intends to remain an active participant in crafting effective
telecommunications legislation that will serve the best interests
of the information industry as a whole.
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[8]
COMPILATION COPYRIGHT AT THE SUPREME COURT:
ROUND 2 IN 1994
by Jim Schatz, Chair, IIA Proprietary Rights Committee
and Marla A. Hoehn, Heins, Schatz & Paquin
Ever since the U.S. Supreme Court decided the _Feist
Publications_ case in 1991, information companies have been
waiting for clearer signals from the courts about the scope and
strength of copyright in compilations, including directories,
collections of public domain materials, and factual databases.
Now, cases on yellow pages directories, baseball pitching
statistics forms, and personal organizers have found their way
through the judicial system, and offer the high court a change to
clarify its _Feist_ ruling.
_Bellsouth Advertising & Publishing Corp v. Donnelley Info.
Publishing, Inc._, 999 F.2d 1436 (11th Cir. 1993), _petition for
cert._ filed (No. 93-862; Nov. 30, 1993) is a yellow pages
copyright case. In developing its own directory, defendant used
certain information in plaintiff's directory, including the name,
address, telephone number, business type and unit of advertising
of each of plaintiff's subscribers. In September, the full
Eleventh Circuit Court of Appeals (based in Atlanta) held that
this did not amount to copyright infringement because no original
elements of selection, coordination, or arrangement of the first
directory were copied. The court concluded that plaintiff's
grouping of individual listings under appropriate headings was
not "original." Although finding that defendant actually took a
"substantial" amount of information from plaintiff's directory,
the Court nevertheless decided that similarities in headings
between the parties' directories was due more to functional
considerations and standard industry practice than to the fact
that defendant copied plaintiff's headings.
A strong dissenting opinion argued that plaintiff's
independent selection of headings for its directory, its
assignment of listings to the various headings, and its selection
of businesses to include in the directory were acts of
originality warranting copyright protection. The dissent noted
that the defendant's subject headings were based on the
plaintiff's, and concluded that the second yellow pages directory
was "substantially similar" in arrangement to the first one,
including the repetition of telltale errors.
In _Kregos v. Associated Press_, 3 F.3rd 656 (2nd Cir.
1993), _petition for cert. filed_ (No. 93-863; Nov. 30, 1993),
the Second Circuit Court of Appeals in New York considered
whether the defendant violated the plaintiff's copyright in a
form presenting statistics on baseball pitchers. Ultimately, the
court held that the plaintiff was entitled to copyright
protection, but that the defendant had not committed an
infringement, because four of the ten statistical categories used
in the defendant's form differed from those in the plaintiff's
form.
The Ninth Circuit Court of Appeals in San Francisco reached
a different result in _Harper House, Inc. v. Thomas Nelson,
Inc._, 1993 WL 346546 (9th Cir. Sept. 10, 1993), a case involving
competing personal organizers. The court concluded that
plaintiff's organizers were entitled to only limited copyright
protection, they consisted largely of uncopyrightable elements
such as blank forms. However, because defendant's organizers
contained 63 out of 76 sticker label headings contained in
plaintiff's organizers, and because of other close similarities,
the court found sufficient evidence to show "bodily
appropriation" of the selection, coordination and arrangement of
plaintiff's organizers, even though there were also differences
in the selection or arrangement of sections.
As it happens, all three of these decisions were issued in
early September, and parties in all three cases have asked the
U.S. Supreme Court for a ruling. The Supreme Court hears only a
small fraction of cases presented to it, and generally decides
only one or two copyright cases each year. However, the fact
that three different courts of appeal have applied the _Feist_
decision differently could help persuade the Supreme Court to
consider these cases, in order to resolve apparent
inconsistencies. The Court will probably decide this spring
whether to consider any of the cases; if it agrees to do so, a
final decision would probably come by mid-1995. IIA will
consider filing a friend of the court brief if the Supreme Court
agrees to hear any of these cases.
On January 24, 1994, the Supreme Court denied the petition
for certiorari in the BAPCO case. Also, the press has reported a
pending settlement of the Harper House case. It appears,
therefore, that the remaining chance for the Supreme Court to
clarify its Feist decision rests with the Kregos case. IIA will
monitor these cases for impact on the interests of information
companies.
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President of the IIA: Kenneth B. Allen
Editor of Information Policy Online: Steven J. Metalitz, IIA
Vice President and General Counsel
Consulting Editor: J. Timothy Sprehe, Sprehe Information
Management Associates
For messages to IIA-IPO: <iia.ipo@his.com>
Voice: (202) 639-8262. Fax: (202) 638-4403.
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