          Constitutional Concerns Raised by the Collections of
                      Information Antipiracy Act

The p roposed C o llectio n s o f Information A ntipiracy Act raises difficult and novel constitutional ques­
   tions co n cern in g C o n g ress’s power to restrict the dissem ination o f inform ation. C ongress may not,
   p u rsu an t to the In tellectual Property C lause o f the C onstitution, create “ sweat o f the brow ” protec­
   tion for com piled facts, at least insofar as such protection would extend to w hat the Suprem e
   C o u rt has term ed the nonoriginal portion of such a com pilation. E ither or both the Intellectual
   P roperty C lau se and the F irst Am endm ent m ay impose lim itations on the exercise o f congressional
   po w er u n d er the C o m m erce Clause that w ould raise serious constitutional concerns regarding the
   constitu tio n ality o f the bill.

                                                                                                        July 28, 1998


             M e m o r a n d u m O p in io n f o r t h e A s s o c i a t e W h it e H o u s e C o u n s e l


   You have asked for our views on the constitutionality of the Collections of
Information Antipiracy Act, H.R. 2652, 105th Cong. (1998), which passed the
House on May 19, 1998. H.R. 2652 raises very difficult, and quite novel, constitu­
tional questions, which are the subject of this memorandum. The following anal­
ysis is preliminary and general. We would, of course, be pleased to provide views
directed to more specific questions that you might have.
   The object of H.R. 2652 is, in effect, to provide a quasi-property right in certain
collections of information that required great effort to compile. H.R. 2652 would
impose liability upon anyone who “ extracts, or uses in commerce, all or a substan­
tial part, measured either quantitatively or qualitatively, o f a collection of informa­
tion gathered, organized, or maintained by another person through the investment
of substantial monetary or other resources, so as to cause harm to the actual or
potential market of that other person, or a successor in interest of that other person,
for a product or service that incorporates that collection of information and is
offered or intended to be offered for sale or otherwise in commerce by that other
person, or a successor in interest o f that person.” Id. §2 (proposed 17 U.S.C.
§ 1202 ).
  In assessing the constitutional concerns raised by the bill, which would provide
what is known as “ sweat of the brow ” protection for certain compilations of
factual material, we address three related questions:

          (i) whether the bill constitutes a valid exercise of Congress’s power
          under the Intellectual Property Clause o f the Constitution, art. I,
          §8, cl. 8, which provides that Congress shall have the power “ to
          promote the Progress of Science and useful Arts, by securing for
          limited Times to Authors and Inventors the exclusive Right to their
          respective Writings and Discoveries” ;

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             Constitutional Concerns Raised by the Collections o f Information Antipiracy Act


          (ii) whether, if the bill does not constitute a valid exercise of
          Congress’s power under the Intellectual Property Clause, it con­
          stitutes a valid exercise of Congress’s power under the Commerce
          Clause, or whether the Intellectual Property Clause precludes such
          Commerce Clause legislation; and

          (iii) whether, if the Intellectual Property Clause does not preclude
          Congress from exercising its commerce power to enact such legisla­
          tion, the First Amendment restricts such an exercise of the com­
          merce power.

  As to the first question, the Supreme Court’s decision in Feist Publications,
Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), indicates that Congress
may not, pursuant to the Intellectual Property Clause of the Constitution, create
such “ sweat of the brow” protection for compiled facts, at least insofar as such
protection would extend to what the Court termed the nonoriginal portion of such
a compilation. As to the second and third questions, Supreme Court precedents
do not provide clear guidance; it is fair to say, however, that either or both the
Intellectual Property Clause and the First Amendment may impose limitations on
the exercise of congressional power under the Commerce Clause that would raise
serious constitutional concerns regarding the constitutionality of H.R. 2652.1

                                     I. Description of H.R. 2652

   The stated purpose of H.R. 2652 is to “ complement” the protection that copy­
right law provides to collections of information. See Collections o f Information
Antipiracy Act, H.R. Rep. No. 105-525, at 5 (1998) (“ House Report” ). According
to the House Report on H.R. 2652, the Supreme Court’s decision in Feist
(described in more detail below) has substantially reduced the incentives for the
creation of compilations of information at the same time that “ [c]opying large
quantities of materials from another’s collection, and using it in a competing
information product— behavior that copyright protection may not effectively pre­
vent-—is cheaper and easier than ever, through digital technology now in wide­
spread use.” House Report at 7. The House Report recognizes that “ [vjarious
legal and technological options exist today for producers of collections of informa­

    1 Ir is u matter of some contention whether, and to what extent, the incentives that would be created by H R
2652 are necessary to stimulate a significant quantum ot valuable compilations ot tacts that otherwise would remain
uncompiled, or whether currently available incentives and legal protections arc sufficient to ensure the continued
wide dissemination of factual compilations in the pubhc domain See. e g , J H Reichman & Pamela Samuelson,
Intellectual Properly Rights in D a ta ', 50 Vand L Rev 51, 113-36 (1997), Jessica Lilman. After Feist, 17 U
Dayton L Rev 607, 611-13 (1992), Jane C Ginsburg, No “Sweat 7 Copyright and Other Protection o f Works
o f Information after Feist v Rural Telephone 92 Coluin L Rev 338 (1992) This memorandum does not address
the merits ot this dispute, but, as we explain below, courts would be more likely to uphold the legislation against
constitutional challenge it they were persuaded that it would increase, rather than decrease, the collection and use
of information


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                           Opinions of the Office o f Legal Counsel in Volume 22


tion to protect their investments” — namely, copyright and state contract law. Id.2
The House Report concludes, however, that these other existing tools are not
“ adequate to address the crux o f the problem,” and that there are “ meaningful
gaps in protection that can best be filled by a new federal statute.” Id. at 7 -
8. In particular, “ the coverage o f copyright law is limited after Feist, and the
protection of a contract binds only the parties to that contract.” Id. at 7.
   The asserted “ goal” o f H.R. 2652 “ is to stimulate the creation of more collec­
tions [of information], as well as increased dissemination to the public, and to
encourage more competition among producers.” House Report at 8. In particular,
the object of H.R. 2652 is to “ restore a modified form of the ‘sweat of the brow’
protection available in the past as a separate doctrine and then under copyright
law, but under appropriate Constitutional power and with appropriate limitations.”
Id. at 9. The House Report asserts that the Act would not “ create a property
right like copyright,” but would instead establish “ a tort-based cause of action
against misappropriation.” Id.
   H.R. 2652 would establish a new chapter in title 17, to be entitled “ Misappro­
priation o f Collections of Information.” The principal provision would establish
a “ misappropriation” tort, to be codified as 17 U.S.C. § 1202:

          Any person who extracts, or uses in commerce, all or a substantial
          part, measured either quantitatively or qualitatively, of a collection
          o f information gathered, organized, or maintained by another person
          through the investment o f substantial monetary or other resources,
          so as to cause harm to the actual or potential market of that other
          person, or a successor in interest of that other person, for a product
          or service that incorporates that collection of information and is
          offered or intended to be offered for sale or otherwise in commerce
          by that other person, or a successor in interest of that person, shall
          be liable to that person o r successor in interest for the remedies
          set forth in section 1206.

  Any person injured by a use or extraction o f information in violation of § 1202
could file a civil action in federal district court. Id. (proposed § 1206(a)). Such
courts would have the power to issue injunctions enjoining any uses or extractions

   2 Increasingly, compilers o f information—particularly those who incorporate such compilations in electronic form—
package such compilations with a so-called “ shrinkwrap” license (or “ click-on” license, for documents posted
on-line). This sort o f “ contract” purports to condition consum ers’ use of the product on the consumers’ implicit
agreement not to copy the information or disseminate it to others See generally ProCD, Inc. v. Zeidenberg, 86
F.3d 1447 (7th Cir. 1996) Such contract-based restrictions might have a significant impact on the ability of users
of factual compilations to copy or distribute the facts contained therein However, because of several unresolved
questions concerning the enforceabitity of these contracts, the efficacy o f this approach is unclear. See, e g , id.
at 1453-55 (discussing w hether contract claim is preempted by the Copyright Act and holding that it is not); see
also Cohen v. Cowles M edia C o , 501 U S 663, 669-71 (1991) (holding that the First Amendment does not prohibit
a state from applying a “ generally applicable” law of promissory estoppel to impose damages on a newspaper
that revealed the identity o f a source to whom it had promised confidentiality)


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         Constitutional Concerns Raised by the Collections o f Information Antipiracy Act


of information that would contravene § 1202. Id. (proposed § 1206(b)). Those
courts also would be able to “ impound[]” any “ copies of contents of a collection
of information extracted or used in violation of § 1202.” Id. (proposed § 1206(c)).
A prevailing plaintiff in a civil action would be entitled to treble damages, as
well as any profits realized by the defendant, costs and attorneys’ fees. Id. (pro­
posed § 1206(d)). Willful violations would, under certain circumstances, be subject
to criminal felony sanctions, including five years imprisonment. Id. (proposed
§ 1207(b)). No criminal or civil action could be maintained by virtue of a use
or extraction “ that occurs more than 15 years after the investment of resources
that qualified the . . . collection of information for protection under [H.R. 2652].”
Id. (proposed § 1208(c)). But this limitation might, for all intents and purposes,
create perpetual liability, since every time the collection of information is “ main­
tained,” id. (proposed § 1202), that would be an “ investment of . . . resources”
that qualifies the “ collection of information” for protection under proposed
§ 1202. Thus, if the collector “ expandfs]” or “ refresh[es]” the collection,
arguably the fifteen-year period would start anew. See House Report at 21.
   The proposed legislation sets forth six categories of what it terms “ permitted
acts.” See proposed § 1203(a)-(f). The first subsection provides that the legislation
shall not prevent “ the extraction or use of an individual item, or other insubstantial
part of a collection of information, in itself,” but notes that repeated or systematic
uses or extractions of individual items or insubstantial portions may not be used
in a manner that would circumvent the general prohibition against uses or extrac­
tions. Id. (proposed § 1203(a)). The second subsection makes clear that the legisla­
tion shall not “ restrict any person from independently gathering information or
using information obtained by means other than extracting it from a collection
of information gathered, organized, or maintained by another person through the
investment of substantial monetary or other resources.” Id. (proposed § 1203(b)).
The third subsection provides that the legislation shall not restrict a person from
using or extracting information contained in a compilation “ for the sole purpose
of verifying the accuracy of information independently gathered, organized, or
maintained by that person.” Id. (proposed § 1203(c)). The fourth subsection pro­
vides that extractions or uses “ for nonprofit educational, scientific, or research
purposes” shall not be prohibited unless such extractions or'uses- would “ harm
the actual or potential market for the product or service.” Id. (proposed § 1203(d)).
The fifth subsection provides an exception for uses or extractions “ for the sole
purpose of news reporting” in certain specific circumstances. Id. (proposed
§ 1203(e)). The sixth subsection permits “ the owner of a particular lawfully made
copy of all or part of a collection of information from selling or otherwise dis­
posing of the possession of that copy.” Id. (proposed § 1203(f)).
   The proposed bill also contains a separate exclusion (with limited exceptions)
for “ collections of information gathered, organized, or maintained by or for a
government entity, whether Federal, State, or local, including any employee or

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                    Opinions o f the Office o f Legal Counsel in Volume 22


agent of such entity.” Id. (proposed § 1204(a)). This “ exclusion,” would be con­
fined to collections o f information gathered, organized, or maintained “ in the
course o f performing governmental functions,” and thus would not appear to
exempt factual databases— even databases made available to the public—that were
compiled by private parties using government funding, or pursuant to government
contract. Finally, another section of the bill provides, in pertinent part, that an
exclusion for “ collections of information gathered, organized, or maintained in
the course of performing governmental functions other than education or scholar­
ship, by or for a government entity, whether Federal, State, or local, including
any employee or agent of such entity, or any person exclusively licensed by such
entity, within the scope of the employment, agency, or license.” However, the
exception for “ education or scholarship” would mean that § 1202’s “ use or
extraction” tort would still make the prohibition applicable to information com­
piled entirely by public colleges and universities. See also House Report at 17
(confirming that the statute would apply to information collected by “ Federal or
State educational institutions in the course of engaging in education or scholar­
ship” ).
   Particularly in light of the constitutional limitations that might apply to the type
of protection afforded by H.R. 2652, the precise nature of the prohibitions, permis­
sions and exemptions that are contained in the proposed bill are of critical impor­
tance. However, many o f the critical, proposed statutory terms are not well-
defined. Because o f the ambiguity of many o f these terms, it is impossible to
know for certain how wide-ranging H.R. 2652’s application would be. Neverthe­
less, in the remainder of this section, we identify some of the broadest and most
ambiguous provisions of H.R. 2652 in order to clarify its possible scope.
   To begin with, “ information” would be defined to mean “ facts, data, works
of authorship, or any other intangible material capable of being collected and orga­
nized in a systematic way.” Proposed § 1201(2). As a result, unlike the Copyright
Act, the proposed legislation would provide protection that would not be limited
to compilations of what have been termed expressive or original materials, con­
cepts that we discuss in more detail below. The legislation would instead also
provide protection to ordinary facts, which are not now subject to copyright
protection and may be unsuited to such protection as a matter of constitutional
law. In addition, the definition of “ information” would not, from its face, appear
to be limited to those compilations of information that are accessible only for
a fee.
   The proposed legislation also does not define either the term “ extracts” or the
phrase “ uses in commerce.” Given their seemingly expansive, ordinary meanings,
these words would, standing alone, appear to give H.R. 2652 quite a broad scope.
See House Report at 12 (explaining that the provision would cover any “ dissemi­
nation to others” ). Moreover, the bill does not expressly provide that the prohibi­
tion on uses or extractions would apply only to uses or extractions for commercial

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             Constitutional Concerns Raised by the Collections o f Information Antipiracy Act


purposes. In addition, the bill would not expressly limit liability to uses of
information that is conveyed for a fee, or that is conveyed subject to contractual
conditions on its further dissemination.3 Finally, the provision would prohibit cer­
tain “ uses” or “ extractions” of even quantitatively insubstantial parts of a com­
pilation, if the part in question is “ qualitatively” substantial. The House Report
provides the following elaboration on this point:

          Only portions of the collection that are substantial in amount or
          importance to the value of the collection as a whole would be cov­
          ered. Qualitative harm may occur through the extraction of a quali­
          tatively small but valuable portion of a collection of information.
          For example, the Physician’s Desk Reference, a work that compiles
          generally available information about every prescription drug
          approved by the FDA, contains some several thousand drugs and
          is available to both consumers and medical professionals. If a
          second comer extracted information about the thousand most com­
          monly prescribed medications and offered it for sale to the general
          public— for example under the title “ Drugs Every Consumer
          Should Know” —that extraction and use, although a fraction of the
          total collection of information, would cause the kind of market
          harm that the Committee intends H.R. 2652 to prevent. Similarly,
          the extraction or use of real-time quotes for all technology stocks
          from a securities database, while constituting a relatively small por­
          tion of actively traded or volatile securities, may be of such “ quali­
          tative” importance to the value of the database that it creates the
          type of commercial harm that the Committee intends section 1202
          to prevent.

House Report at 12.4
  At the same time, the bill only prohibits extractions or uses in commerce that
would “ harm the actual or potential market” of the person who gathered, orga­
nized or maintained the collection of information. Proposed § 1202. The scope
of this important limitation is unclear. The legislation would define “ potential
market” to mean “ any market that a person claiming protection under section
1202 has current and demonstrable plans to exploit or that is commonly exploited

   3 Indeed, the proposed statute is intended to supplement, rather than to supplant, any contractual remedies that
the compiler might have See § I205(a)-(b) (expressly providing that state contract law is not preempted). Accord­
ingly, it would prevent the “ use” or “ extraction” o f data from a collection even if (he creator of the collection
had disseminated it freely, without any contractual limitations
   4 The prohibition against extracting or using such information would not (at least not expressly) be limited to
the use or extraction o f those parts o f a collection that were compiled “ through the investment of substantial monetary
or other resources” , instead, the prohibition apparently would apply to uses or extractions of a substantial part
of a compilation, so long as the compilation itself (rather than the extracted components thereof) was “ gathered,
organized, or maintained         through the investment o f substantial monetary or other resources.”


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                    Opinions o f the Office o f Legal Counsel in Volume 22


by persons offering similar products or services incorporating collections of
information.” Proposed § 1201(3). This definition is arguably an expansive one
that would justify a very broad construction of what would constitute harm to
the potential market. Under such a broad construction, even an individual’s deci­
sion to download information that had been offered for sale, purchased, but then
posted on the internet for free use by the purchaser could give rise to liability
on the theory that such an “ extraction” would decrease the “ potential market”
by depriving the initial seller of a potential buyer. So construed, even the provi­
sions in H.R. 2652 that would exempt certain uses and extractions for scientific
or educational purposes would do little to confine the reach of the bill. As noted
above, these exemptions are themselves limited by the requirement that such uses
or extractions not harm the potential market o f the original compiler, and it would
appear that any educational or scientific sharing of information could deprive a
potential seller of a potential buyer.
   In addition, H.R. 2652 does not include anything resembling the express exemp­
tions found in the Copyright Act for uses that Congress previously has considered
to be of particular public benefit. See, e.g., 17 U.S.C.A. § 108 (concerning repro­
duction by libraries and archives), §110(1) (concerning face-to-face teaching
activities), §110(2) (concerning performances and transmissions for educational
purposes), § 110(3) (concerning performances in the course of religious services
and assemblies), §118 (concerning uses by noncommercial broadcasters). The
absence o f these express exemptions in what would be a statutory scheme closely
related to the Copyright Act could be read to suggest that Congress intended to
prohibit such uses.
   There are, however, factors that counsel against a broad construction of “ poten­
tial market,” and thus that point toward a more limited construction of the scope
of the protection that would be provided by H.R. 2652. As an initial matter, the
broadest possible construction would raise very serious constitutional concerns that
we discuss in the following sections, and thus courts may be likely to avoid such
a construction for that reason alone.
   In addition, the Copyright Act itself identifies harm to the “ potential market”
as one o f the four statutory factors to be weighed in determining whether the
“ fair use” standard has been met, see 17 U.S.C.A. § 107(4), and thus the appear­
ance of this same phrase in the proposed legislation may signal Congress’s
intention to incorporate the definition that has been developed in the copyright
context. Moreover, H.R. 2652 would contain, in addition to the “ harm to the
potential m arket” requirement, the requirement that a use or extraction be of a
substantial portion of the compilation. This limitation also appears to be analogous
to one of the four statutory factors for determining “ fair use” under the Copyright
Act. See 17 U.S.C.A. § 107(3) (describing the factor as “ the amount and substan­

                                             172
             Constitutional Concerns Raised by the Collections o f Information Antipiracy Act


tiality of the portion used in relation to the copyrighted work as a whole” ).5 Thus,
there would appear to be some textual basis for concluding that H.R. 2652 is
intended to incorporate, albeit implicitly, something like the “ fair use” provision
of the Copyright Act, and thus to limit to a significant degree the scope of the
protection that the statute would provide.
   If so, the Court’s recent decision in Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569, 590-94 (1994), would be relevant to the construction of H.R. 2652.
The Court there suggested that the potential market factor is satisfied for purposes
of the Copyright Act when a copyrighted work is used in a way that would create,
in effect, a substitute product in direct competition with the original. See id. at
590-94. The Court added, however, that when “ the second use is transformative,
market substitution is less certain, and market harm may not be so readily
inferred.” Id. at 591. Applying that same approach here, H.R. 2652 would
arguably reach, with some exceptions, only non-transformative uses for commer­
cial purposes, as it would be only such uses that, in light of the “ fair use
standard” developed in copyright law, would result in harm to the potential market
within the meaning of H.R. 2652. It is important in this regard to emphasize that
the fair use standard in copyright law is an equitable one that requires a sensitive
weighing of the statutory factors in light of the specific factual context at issue,
see id. at 577 (“ The task is not to be simplified with bright-line rules, for the
statute, like the doctrine it recognizes, calls for case-by-case analysis.” ), and that
a determination as to fair use may also depend upon an evaluation of the “ good
faith” of the use, see id. at 585 n .l8.
   In sum, while it is clear that H.R. 2652 is intended to cover nonoriginal, factual
material, which the Copyright Act does not (and, as we explain below, for con­
stitutional reasons, probably could not be extended to reach), the scope of the
protection that H.R. 2652 is intended to afford to such factual materials is far
less clear. The ambiguity concerning the scope of the intended protection for fac­
tual material arises in large part because the legislation does not make clear
whether it is intended to incorporate a version of the fair use provision that is
contained in the Copyright Act or whether it is instead intended to reach broadly
to encompass individual uses by noncompetitors for noncommercial purposes.
   Suffice it to say that, notwithstanding the ambiguities in the text, to the extent
the provision would prohibit extractions or uses of substantial portions of factual
compilations by direct competitors, it is much more likely to be held constitutional
than if it would prohibit extractions or uses by potential consumers for non­
commercial purposes. By contrast, if the provision were construed to provide

   5 The two other statutory factors that are identified in the fair use provision of the Copyright Act are also arguably
incorporated by H R 2652 The first factor is “ the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes” 17 U S C A .§107(1) The second factor is
“ the nature of the copynghted work ” Id. § 107(2). These factors are also arguably implicitly encompassed by H R
2652, which applies to collections of information, broadly defined, with specific provisions permitting certain acts
such as educational and scientific uses (to the extent that they would not harm the potential market)


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                            Opinions o f the Office o f Legal Counsel in Volume 22


protection against uses by potential consumers, and not simply direct competitors,
it would appear to be of almost limitless scope and therefore to raise constitutional
concerns that would appear insurmountable.6 We explain, however, that even if
the protection provided by H.R. 2652 were construed as limited direct competitors
and to somehow distinguish between “ fair” and “ unfair” uses of collections of
information, there would remain substantial constitutional questions concerning
the degree to which any reuse of factual information that would not infringe on
the originality of a work may be deemed by Congress to be in some sense
“ unfair” and therefore subject to regulation. In other words, it is unclear what
“ unfair uses” of factual material could be constitutionally prohibited. There is
also little precedent to guide interpretation as to where the line between fair and
unfair uses of factual information is intended to be drawn precisely because the
Copyright Act, which codifies the ‘ ‘fair use’ ’ standard, does not provide protection
for facts.
   With this background concerning the proper construction of H.R. 2652 in place,
we now turn to the constitutional analysis o f the bill.

                                 II. The Intellectual Property Clause

   We understand that the proposed legislation is not necessarily intended to con­
stitute an exercise of Congress’s power under the Intellectual Property Clause,
and that it is instead apparently premised on Congress’s power to regulate inter­
state commerce. Nevertheless, it is instructive for purposes of analysis to examine,
as an initial matter, whether the legislation could be premised on Congress’s power
under the Intellectual Property Clause. It is only to the extent that the legislation
would fall outside the permissible scope of the power conferred by that clause
that it would give rise to concerns that, as an exercise of the Commerce Power,
it would impermissibly infringe on an implicit limitation contained in the Intellec­
tual Property Clause.
   The key precedent for assessing whether this proposed legislation would con­
stitute a valid exercise of Congress’s power under the Intellectual Property Clause
is Feist. In Feist, the Supreme Court considered the extent to which the Copyright
Act, 17 U.S.C.A. §§ 101-1101 (W est 1996 & Supp. 1998), protected the listings

   6 Read literally, for exam ple, §1202 would appear to prevent the library from disseminating “ substantial”
(including “ qualitatively” substantial) portions o f the compilation to its patrons, and might prevent the patrons from
using such compilations, since such patrons are part of a market or “ potential market” for purchase o f the book.
Or, imagine a book that contains a great deal o f unearthed factual material— such as valuable, accurate information
on the dangers o f prescription drugs (see House Report at 13), a thorough historical chronology of important events,
or a com prehensive amalgamation o f geographical or topographical data. If a subsequent researcher, scientist or
historian concludes that a “ qualitatively substantial” portion o f such facts are important, and therefore posts them
to the W orld W ide W eb o r includes them m a later work— or, possibly, if that later histonan so much as “ extracts”
the facts by taking notes— he or she might possibly violate § 1202, whether or not that later work uses, incorporates,
or transform s the facts in a m anner that the compilation did not. See J.H Reichman & Pamela Samuelson, Intellectual
Property Rights in Data?, 50 Vand. L. Rev. 51, 135, 143 n.424 (1997). O f course, the extreme nature of these
exam ples may counsel in favor o f a construction o f H.R. 2652 that would exclude them.


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            Constitutional Concerns Raised by the Collections o f Information Antipiracy Act


in telephone directory white pages from copying by a competitor. In answering
that statutory question, the Court did not confine itself to a conventional consider­
ation of congressional intent. Instead, the Court first examined the constitutional
limitations inherent in the power conferred by the Intellectual Property Clause,
on which the Copyright Act was premised.7 Only after having considered these
background constitutional limitations on the exercise of the copyright power did
it reach the conclusion that Congress did not intend the Copyright Act to extend
protection to such listings. There is language in the opinion, however, that
indicates that the Court also predicated its decision on a judgment that the Intellec­
tual Property Clause would not empower Congress to provide copyright protection
to either the listings themselves, or the facts contained in the listings, even if
Congress intended to extend such protection.
   In addressing the background constitutional limitations on the scope of the
power conferred by the Intellectual Property Clause, the Court acknowledged that
copyright protection may extend to factual compilations and to other “ fact-based
works,” but concluded that the prerequisite for such protection is that the selection
or arrangement of the facts is in some degree “ original.” 499 U.S. at 344-51.
The Court explained that “ [o]riginality is a constitutional requirement.” Id. at
346. In order to satisfy this constitutional prerequisite of originality, the Court
opined, the work in question must “ possess[] at least some minimal degree of
creativity.” Id. at 345. In a factual compilation, this .creativity can be present
in the manner in which the compiler selects or arranges the facts. Id. at 348.
Indeed, “ [t]he vast majority of works make the grade quite easily, as they possess
some creative spark, no matter how crude, humble, or obvious it might be.” Id.
at 345 (internal quotation marks omitted). The Court noted that “ [o]riginality does
not signify novelty; a work may be original even though it closely resembles other
works so long as the similarity is fortuitous, not the result of copying.” Id.
   Under Feist, however, even if a compilation is in some sense original, and
thereby entitled to some copyright protection, “ the copyright in a factual compila­
tion is thin.” Id. at 349. That is because, in such circumstances, the bulk of the
material that comprises the work will, by definition, be facts that in and of them­
selves lack the originality that justifies protection pursuant to the Intellectual Prop­
erty Clause. As the Court explained:

         The mere fact that a work is copyrighted does not mean that every
         element of the work may be protected. Originality remains the sine
         qua non of copyright; accordingly, copyright protection may extend
         only to those components of a work that are original to the author.
         Thus, if the compilation author clothes facts with an original col­
         location of words, he or she may be able to claim a copyright in

  7There was no contention in Feist that the Copyright Act was premised on any sourcc of power other than the
Intellectual Property Clause


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                    Opinions o f the Office o f Legal Counsel in Volume 22


       this written expression. Others may copy the underlying facts from
       the publication, but not the precise words used to present
       them. . . .

          . . . Notwithstanding a valid copyright, a subsequent compiler
       remains free to use the facts contained in another’s publication to
       aid in preparing a competing work, so long as the competing work
       does not feature the same selection and arrangement. As one com­
       mentator explains it: “ [N]o matter how much original authorship
       the work displays, the facts and ideas it exposes are free for the
       taking . . . . [T]he very same facts and ideas may be divorced from
       the context imposed by the author, and restated or reshuffled by
       second comers, even if the author was the first to discover the facts
       or to propose the ideas.”

Id. at 348—49 (citations omitted) (quoting Jane C. Ginsburg, Creation and
Commercial Value: Copyright Protection o f Works o f Information, 90 Colum. L.
Rev. 1865, 1868 (1990)). Accordingly, as applied to a factual compilation that
has nonoriginal written expression, the Court concluded that “ only the compiler’s
selection and arrangement may be protected; the raw facts may be copied at will.
This result is neither unfair nor unfortunate. It is the means by which copyright
advances the progress of science and art.” Id. at 350.
   Against this backdrop, the Court rejected the argument that the Copyright Act
incorporated the “ sweat of the brow ” doctrine— namely, that, whether or not a
factual compilation contained any degree of creativity, copyright still attached in
order to compensate compilers for the hard work and resources that they expended
in the course of compiling the facts. Id. at 352—54. Such a doctrine was not teth­
ered to the originality requirement that the Court concluded was the sine qua non
for copyright protection.
   On the basis of its constitutional and statutory analysis, the Court concluded
that the white pages at issue in Feist contained none of the creativity that would
suffice to render a work “ original.” It therefore concluded that the listings were
entitled to no protection under the Act, despite the fact that the defendant had
copied significant portions of the plaintiffs compilation for use in its own com­
peting white pages. The Court noted that the listings at issue fell into the “ narrow
category of works in which the creative spark is utterly lacking or so trivial as
to be virtually nonexistent.” Id. at 359. It explained that the white pages at issue
are “ entirely typical. Persons desiring telephone service in Rural’s service area
fill out an application and Rural issues them a telephone number. In preparing
its white pages, Rural simply takes the data provided by its subscribers and lists
it alphabetically by surname. The end product is a garden-variety white pages
directory, devoid of even the slightest trace o f creativity.” Id. at 362. The Court

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further explained that Rural could not claim “ originality in its coordination and
arrangement of facts. . . . [Tjhere is nothing remotely creative about arranging
names alphabetically in a white pages directory. It is an age-old practice, firmly-
rooted in tradition and so commonplace that it has come to be expected as a
matter of course.” Id. at 363.
  The Court therefore concluded that both the compilation itself, and the particular
pieces of information contained therein, lacked sufficient originality to warrant
protection. The Court summarized its judgment as follows:

             We conclude that the names, towns, and telephone numbers
          copied by Feist were not original to Rural and therefore were not
          protected by the copyright in Rural’s combined white and yellow
          pages directory. As a constitutional matter, copyright protects only
          those constituent elements of a work that possess more than a de
          minimis quantum of creativity. Rural’s white pages, limited to basic
          subscriber information and arranged alphabetically, fall short of the
          mark. As a statutory matter, 17 U.S.C. § 101 does not afford protec­
          tion from copying to a collection of facts that are selected, coordi­
          nated, and arranged in a way that utterly lacks originality. Given
          that some works must fail, we cannot imagine a more likely can­
          didate. Indeed, were we to hold that Rural’s white pages pass
          muster, it is hard to believe that any collection of facts could fail.

Id. at 363-64.
   Despite the strong language contained in the opinion, an argument can be made
that the Court’s constitutional pronouncements in Feist were dictum because they
were unnecessary to the disposition of the case. The Court in Feist was asked
only to resolve a statutory issue concerning the scope of statutory protection for
compilations under the Copyright Act. On the other hand, the Court in Feist
plainly stated at numerous points that originality and creativity are constitutional
prerequisites for copyright protection under Article I, Section 8, Clause 8 o f the
Constitution.8 Those statements strongly indicate that the Court’s decision rested
on a constitutional, rather than merely a statutory, judgment.
   Because the proposed bill would clearly provide protection for “ collections of
information” without regard to whether they are original, and because it would
define “ information” quite expansively, it would appear to protect even the type
of noncreative white pages listing at issue in Feist, as well as similarly unoriginal
factual compilations or facts within otherwise original compilations. In this
respect, the prohibition in proposed section. 1202 would go well beyond the “ thin

  gSee, e g , 499 U S ai 346 ( “ Originality is a constitutional requirement.” ), id. at 363 ( “ [a]s a constitutional
matter,” copyright protection requires “ more than a de minimis quantum of creanvity” ). See also Paul Goldstein,
Copyright, 55 Law & Contemp Probs 79, 88 (1992) (noting that Feist Court indicated thirteen times that originality
was a constitutional requirement, and indicated sixteen times that creativity was a requirement of originality)


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protection” for factual compilations recognized in Feist.9 Accordingly, to the
extent that the proposed bill would attempt to provide protection, pursuant to the
Intellectual Property Clause rather than some other power, to the very type of
unoriginal factual materials that were at issue in Feist, it would run afoul of recent
Supreme Court precedent that is, if not binding, at a minimum a clear indication
of how the Court would likely rule.

III. Possible Intellectual Property Clause Limitations on the Commerce Power

   The House Report asserts that H.R. 2652 may be enacted “ within Congress’
authority to regulate interstate commerce under Article I, Section 8, Clause 3 of
the Constitution.” House Report at 9-10. Absent some external constitutional
limitation, the bill would appear to constitute a valid exercise of the commerce
power, as we understand that extractions, or uses in commerce, of substantial por­
tions of collections of information would, in the aggregate, substantially affect
interstate commerce. See United States v. Lopez, 514 U.S. 549 (1995).10 This sec­
tion examines the question whether the Intellectual Property Clause places an
external limitation on such an exercise of the commerce power.
   Feist does not provide clear guidance on the question. Nothing in Feist holds
that the Intellectual Property Clause limits the scope o f Congress’s power under
other Clauses, such as the Commerce Clause, and the opinion may be read to
state limits that pertain to the exercise of the Intellectual Property Clause itself.
At the same time, some language in Feist might also fairly be read to suggest,
not only that the Intellectual Property Clause does not authorize sweat-of-the-
brow protection for either unoriginal factual compilation or facts in otherwise
original compilations, but also that the Intellectual Property Clause prohibits Con­
gress from relying on any other constitutional power to afford copyright-like
protection to facts and to the nonoriginal parts of factual compilations.
   For example, the Court noted that “ all facts . . . ‘may not be copyrighted and
are part of the public domain available to every person.’ ” 499 U.S. at 348
(emphasis added; citation omitted). See also id. at 349 ( “ ‘[N]o matter how much
original authorship the work displays, the facts and ideas it exposes are free fo r
the taking. . . . [T]he very same facts and ideas may be divorced from the context

   9 It is important to note, however, that, due to the breadth o f the definition of “ information,” which expressly
includes works o f authorship, the bill also w ould appear to provide protection to many factual compilations that
do possess the requisite creativity necessary for copynght protection under Feist. In addition, it would appear that
at least some, and perhaps many, extractions o r uses barred by the bill might infringe on sufficiently original
characteristics o f such work— such as unique arrangements or selections of the facts copied. We caution, however,
that these valid applications o f the bill might n o t provide much greater protection than would already be provided
under the C opynght Act, although H R. 2652 w ould also provide for criminal sanctions. Moreover, even these seem­
ingly valid applications o f the bill would be authorized under the Intellectual Property Clause only insofar as the
legislation satisfied the requirement that the “ exclusive Right[s]” being conferred were for “ limited Tim es.” U.S.
Const, art I, § 8, cl 8
   l0O f course, as we discuss below, too broad a construction o f “ harm to the potential market” would give rise
to sen o u s First Amendment concerns, and might, if particularly extreme, raise concerns under Lopez as well.


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         Constitutional Concerns Raised by the Collections o f Information Antipiracy Act


imposed by the author, and restated or reshuffled by second comers, even if the
author was the first to discover the facts or to propose the ideas.’ ” ) (emphasis
added) (quoting Ginsburg, Creation and Commercial Value, 90 Colum. L. Rev.
at 1868). The Court also opined that it is a “ constitutional requirement” that
persons be permitted to use “ the fruit of the [factual] compiler’s labor” without
compensation:

       It may seem unfair that much of the fruit of the compiler’s labor
       may be used by others without compensation. As Justice Brennan
       has correctly observed, however, this is not “ some unforeseen
       byproduct of a statutory scheme.” Harper & Row, 471 U.S., at
       589 (dissenting opinion). It is, rather, “ the essence of copyright,”
       id., and a constitutional requirement.

Id.
   The Court further explained that the constitutional objective is realized not only
by providing intellectual property rights in expression, but also by permitting ideas
and information to be disseminated freely:

       This principle, known as the idea/expression or fact/expression
       dichotomy, applies to all works o f authorship. As applied to a fac­
       tual compilation, assuming the absence of original written expres­
       sion, only the compiler’s selection and arrangement may be pro­
       tected; the raw facts may be copied at will. This result is neither
       unfair nor unfortunate. It is the means by which copyright advances
       the progress of science and art.

Id. at 350.
   Accordingly, one possible reading of the Feist decision is that a system in which
the “ raw facts” in a compilation may not be “ copied at will” is a system that
necessarily undermines the object of the Intellectual Property Clause— the progress
of science and art— and is therefore unconstitutional. On this view, the clause
would constitute not only a grant of power to Congress but also a limitation on
Congress. Cf. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146
(1989) (discussing scope of federal preemption of state intellectual property law
and stating that “ [a]s we have noted in the past, the [Intellectual Property] Clause
contains both a grant of power and certain limitations upon the exercise of that
power” ); Graham v. John Deere Co., 383 U.S. 1, 5-6 (1966) (explaining, again
with reference to federal preemption of state law, that “ [t]he clause is both a
grant of power and a limitation. . . . Congress may not authorize the issuance
of patents whose effects are to remove existent knowledge from the public domain,
or to restrict free access to materials already available.” ); Compco Corp. v. Day-
Brite Lighting, Inc., 376 U.S. 234, 237 (1964) (discussing scope of federal

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preemption of state law and explaining that “ [t]o forbid copying [under state law]
would interfere with the federal policy, found in [Article] I, [section] 8, [clause]
8, of the Constitution and in the implementing federal statutes, of allowing free
access to copy whatever the federal patent and copyright laws leave in the public
domain” ).
   If the Intellectual Property Clause precluded Congress from providing protection
against the copying of nonoriginal portions of factual compilations, even pursuant
to a power other than that conferred by that Clause, then Congress would not
be able to use the Commerce Clause to avoid the implicit strictures of the Intellec­
tual Property Clause that the Court in Feist could be said to have recognized,
just as Congress may not use the Commerce Clause to avoid the Bankruptcy
Clause’s express requirement that bankruptcy laws be uniform, see Railway Labor
Executives’ A s s ’n v. Gibbons, 455 U.S. 457, 468-69 (1982). Under this reading,
Congress’s reliance on the commerce power would not obviate any of the constitu­
tional problems concerning the exercise of congressional power under the Intellec­
tual Property Clause that we have already identified.11
   On the other hand, prior to Feist, the Court had recognized intellectual property
interests not grounded in the Intellectual Property Clause. There are at least four
notable circumstances outside the copyright context in which the Court has recog­
nized such interests. Although these examples, together, indicate that there is no
categorical prohibition on Congress’s power to restrict the dissemination of data
and other forms of “ intellectual property” that are not copyrighted, neither do
they make clear that Congress would have the power to enact legislation like
H.R. 2652 under the Commerce Clause against a claim that the Intellectual Prop­
erty Clause imposes a limitation. With one exception, the cases are distinguishable,
and even that case does not, by itself, support legislation of this scope.
   First, the Court has sanctioned federal limitations on the dissemination of
information where the person who wishes to disseminate it received such informa­
tion only on the condition that it remain secret or confidential, whether such condi­
tion was expressly set forth by contract or impliedly recognized as a matter of
law. For example, the government is able to afford protection to factual informa­
tion pursuant to its commerce power in order to protect trade secrets. See Bonito
Boats, 489 U.S. at 155-57 (1989) (discussing compatibility of state trade secret
protection with the federal intellectual property regime). See also Seattle Times
Co. v. Rhinehart, 467 U.S. 20 (1984) (federal court may impose protective order
restricting party from revealing trade secrets that it obtained pursuant to compul­

   n See G insburg, No ‘'S w e a t" 7, 92 Colum L. Rev at 368 (“ Feist's claim that its standard of originality is ‘con­
stitutionally m andated’ may impede enactment o f a federal law protecting unoriginal compiled information under
the Com m erce C lause.” ), id. at 349 (“ Justice O ’Connor’s opinion appears to enshnne a policy of free-nding in
the C onstitution” ).


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            Constitutional Concerns Raised by the Collections o f Information Antipiracy Act


sory discovery process).12 These types of protection would appear to be distin­
guishable, however, from the type of protection that H.R. 2652 would provide.
   H.R. 2652 would provide protection to compilers of information so that they
would be able to offer the information to the public for a fee. By contrast, provi­
sions that protect trade secrets do not restrict the manner in which information
that is offered to the public in the market may be used. Such provisions instead
simply provide protection to those persons who wish to keep information con­
fidential and therefore to persons who have no interest in offering to the wider
public for sale. As a result, trade secret protections do not interfere, at least
directly, with the manner in which information that is made available for sale
to the public might be used. By contrast, H.R. 2652 would impose direct limita­
tions on the manner in which members of the public might use information that
is, in some sense that may be constitutionally relevant, already in the public
domain. Cf. Bonito Boats, 489 U.S. at 155-57 (explaining that state trade secrets
protection is not preempted by federal patent laws because trade secrets protection
does not interfere with policy that “ matter once in the public domain must remain
in the public domain” ).13
   Second, protection may be afforded pursuant to the commerce power to deter
false representation, or to protect consumers from confusion, as the trademark
laws demonstrate. See The Lanham Act, 15 U.S.C. §§ 1501-1540 (1994). An
analogy between H.R. 2652 and trademark protection would appear questionable,
as the bill plainly provides protection that is not directed at avoiding confusion
as to the identity of the source of the information. See Bonito Boats, 489 U.S.
at 154-55 (distinguishing between traditional trade dress regulation and laws
aimed at protecting factual information that would not sow confusion). Indeed,
the provision would provide protection even if it were made perfectly clear, and
no consumer could reasonably conclude otherwise, that the copier of the collection
of information had not exerted personal effort in compiling the facts provided
but had instead merely copied them from someone who had exerted such personal
effort.
   In one notable case, protection analogous to that afforded trademarks has been
extended to a word, the use of which would not cause consumer confusion. See
San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S.
522, 539 (1987). That case, however, is distinguishable. There, Congress had pro-
   l2See also Carpenter v United States, 484 U S 19 (1987) (conspiracy to trade on newspaper’s confidential
information is within reach of federal mail and wire fraud statutes), Snepp v United States, 444 U S. 507 (1980)
(government can, as a condition of employment, extract enforceable promise that employees will not reveal classified
information they learn dunng their employ)
   13 We note, however, that in the specific context of libel law, a plurality of the Court in one notable case drew
significance from the fact that information was provided only to a limited number o f subscribers for a fee “ [SJince
the credit report was made available to only five subscribers, who, under the terms of the subscription agreement,
could not disseminate it further, it cannot be said that the report involves any strong interest in the free flow of
commercial information.” Dun & Bradstreet, Inc. v Greenmoss Builders, Inc , 472 U.S. 749, 762 (1985) (plurality
opinion) (internal quotation marks and citations omitted) (permitting recovery of damages for defamatory statement
not involving matters o f public concern absent a showing o f actual malice).


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                    Opinions o f the Office o f Legal Counsel in Volume 22


vided statutory protection for the use of the word “ Olympic” in order to protect
the commercial interests of the United States Olympic Committee and “ the value
[that] the USOC’s efforts have given to [that word].” Id. at 541. That case did
not involve protection of facts, as such, but rather of the special commercial value
associated with the use of a particular word in a particular context. H.R. 2652,
however, would appear to provide such broad protection that it would protect
facts not for any special value apart from their ordinary meaning that has been
given to them by the compiler’s efforts but rather merely because the compiler
expended effort in collecting them.
   Third, state law has been used to provide protection against dissemination of
certain “ copied” materials to protect what has been termed “ the right of pub­
licity.” See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 569 (1977).
The right of publicity protection, however, only guards the use of an individual’s
“ personality” and personal talents against unauthorized commercial exploitation.
See id. For example, Zacchini concerned the legality of a news service’s airing
of film o f an individual’s paid human cannonball performance, against the wishes
of the performer. The case therefore involved protection of a depiction of the
performer’s original performance, a “ fact” — the performance— that existed only
because of the performer’s own efforts. The Court expressly noted that the right
of publicity would not serve to prevent reporting of facts about the cannonball
act, as opposed to display of the act itself in its entirety, id. at 574, and that
the right was analogous to copyright’s protection of original expression, id. at
577 n .l 3. See also id. at 569 (a case involving description of the act would be
“ a very different case” ). By contrast, the protection provided by H.R. 2652 would
extend to factual data that exists independently of the compiler’s efforts.
   Finally, competitive misappropriation of so-called “ hot news” information has
also been afforded protection by the Supreme Court as a matter of federal common
law. See International News Serv. v. Associated Press, 248 U.S. 215 (1918). Inter­
national News Service might provide some authority for the argument that Con­
gress may use its Commerce Clause power to create certain torts relating to ‘‘mis­
appropriation” of facts, even where the facts themselves may not be copyrighted
pursuant to the Intellectual Property Clause.
   In International News Service, the Court, without relying on the Intellectual
Property Clause, recognized the permissibility o f a certain limited form of liability
for copying publicly disclosed information. The case arose prior to the Court’s
decision in Erie Railroad v. Tompkins, 304 U.S. 64 (1938), and it represented
an exercise of the Supreme Court’s power to make federal common law pursuant
to the grant of diversity jurisdiction. The case concerned a dispute that arose from
a practice o f the International News Service. The news agency systematically
reviewed East Coast editions of newspapers published by subscribers to the Asso­
ciated Press, copied or rewrote the stories contained therein, and published the
stories in its own West Coast newspapers, some of which were delivered and

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             Constitutional Concerns Raised by the Collections o f Information Antipiracy Act


sold before rival Associated Press newspapers in the same cities. International
News Serv., 248 U.S. at 231. The Associated Press had not copyrighted its stories,
id. at 233, and there was no established cause of action that the Associated Press
could invoke to stop the International News Service practices.
   The Court held that, even if the Associated Press did not have any property
interest in its reported facts “ as against-the public,” it had a “ quasi property”
right vis-a-vis the International News Service, which was “ seeking to make profits
at the same time and in the same field.” Id. at 236. The Court used this quasi-
property right to justify an injunction against the International News Service’s
“ misappropriation” of Associated Press’s reportage, because the International
News Service was “ endeavoring to reap where it has not sown.” Id. at 239. The
Court’s holding “ only postpone[d] participation by [the Associated Press’s]
competitor in the processes of distribution and reproduction of news that it has
not gathered, and only to the extent necessary to prevent that competitor from
reaping the fruits of [the Associated Press’s] efforts and expenditure, to the partial
exclusion of [the Associated Press].” Id. at 241.14
   Although the legal status of the quasi-property right recognized in International
News Service— and, more particularly, the scope of that right— is not entirely
clear, Feist suggested that the so-called “ hot news” misappropriation tort, at least
as it was recognized in International News Service itself, could survive. The Feist
Court explained that the International News Service Court had acknowledged that
the news articles themselves were “ copyrightable,” but had then “ flatly rejected”
the view “ that the copyright in an article extended to the factual information it
contained.” 499 U.S. at 353-54. Nevertheless, the Court noted that “ [t]he Court
ultimately rendered judgment for Associated Press on noncopyright grounds that
are not relevant here.” Id. at 354 n.*.
   More generally, the Feist Court suggested that an “ unfair competition” theory
could be the basis for some anti-copying protection of nonoriginal factual compila­
tions:

          Protection for the fruits of such research . . . may in certain cir­
          cumstances be available under a theory of unfair competition. But
          to accord copyright protection on this basis alone distorts basic
          copyright principles in that it creates a monopoly in public domain
          materials without the necessary justification of protecting and
          encouraging the creation of “ writings” by “ authors.”

   14 International News Service did not discuss the Intellectual Property Clause, except to note that
      [ijt is not to be supposed that the framers of the Constitution, when they empowered Congress ‘to promote
      the progress o f science and useful arts, by securing for limited times to authors and inventors the exclusive
      right to their respective wntings and discoveries’ (Const Art. I ,‘ §8, par 8), intended to confer upon
      one who might happen to be the first to report a historic event the exclusive nght for any penod to spread
      the knowledge o f it.
Id. at 234


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499 U.S. at 354 (quoting Melville B. Nimmer & David Nimmer, Nimmer on Copy­
right §3.04, at 3-23 (1990) (footnote omitted)). The passage is obscure, and thus
it is not exactly clear what protection might be available ‘‘under a theory of unfair
competition,” or even what the Court intended by the phrase “ a theory of unfair
competition.” It is possible, however, that the passage provides further support
for an argument that the misappropriation tort recognized in International News
Service survives the Feist analysis as an example of permissible regulation of
unfair competition.
   Some insight into the possible meaning of the phrase “ unfair competition” as
it appears in Feist may be gleaned from Justice O ’Connor’s decision for the Court,
two years prior to her opinion in Feist, in Bonito Boats. Justice O ’Connor identi­
fied the “ usual sense [in which] the term ‘unfair competition’ is understood”
by tying it to trade dress protection:

       The law of unfair competition has its roots in the common-law tort
       of deceit: its general concern is with protecting consumers from
       confusion as to source. W hile that concern may result in the cre­
       ation of “ quasi-property rights” in communicative symbols, the
       focus is on the protection o f consumers, not the protection o f pro­
       ducers as an incentive to product innovation. Judge Hand captured
       the distinction well in Crescent Tool Co., v. Kilborn & Bishop Co.,
       247 F. 299, 301 (CA2 1917), where he wrote:

               “ [T]he plaintiff has the right not to lose his customers
               through false representations that those are his wares which
               in fact are not, but he may not monopolize any design or
               pattern, however trifling. The defendant, on the other hand,
             , may copy plaintiffs goods slavishly down to the minutest
               detail: but he may not represent himself as the plaintiff in
               their sale.”

489 U.S. at 157 (emphasis added). As the Court in Bonito Boats concluded,
“ unfair com petition” thus does not describe the object of a statute “ aimed
directly at preventing the exploitation of [publicly disclosed factual information].”
Id. at 158. H.R. 2652 would be such a statute.
   If this limited meaning of “ unfair competition” were all that the Court intended
to cover in the passage quoted above from Feist, then it would be difficult to
rely on that passage as authority for the type of “ unfair competition” protection
contemplated here. On the other hand, the tort recognized in International News
Service does appear to have been premised on the notion that the International
News Service had engaged in “ unfair competition,” and thus that a legal remedy
could be provided for such conduct even though the copyright power would not

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             Constitutional Concerns Raised by the Collections o f Information Antipiracy Act


provide the basis for such protection. As a result, the general reference in Feist
to protection against unfair competition emanating from the exercise of a valid
power other than the Intellectual Property Clause provides some basis for the
congressional creation of a misappropriation tort, at least along the lines recog­
nized in International News Service.
  If, as seems fair to be the case, Feist does not foreclose Congress from enacting
something approximating the misappropriation tort recognized in International
News Service itself, there remains the question concerning the permissible scope
of an extension of such a tort. There is little precedent to provide direct guidance
on this point in part because there has been little legal development in the mis­
appropriation tort itself since Feist. Indeed, even prior to Feist, due to the C ourt’s
decision in Erie Railroad limiting the authority of federal courts to engage in
common lawmaking, federal courts had no occasion to expand upon the tort recog­
nized in International News Service. State courts have also had little occasion
to expand upon the tort recognized in International News Service, in part because
of the preemptive effect of the Copyright Act. As explained in the recent case
of NBA v. Motorola, Inc., 105 F.3d 841, 852 (2d Cir. 1997), a state-law tort that
would not be preempted by the Copyright Act must have the following essential
elements: (i) the plaintiff generates or collects information at some cost or
expense; (ii) the value o f the information is highly time-sensitive; (iii) the defend­
ant’s use of the information constitutes free-riding on the plaintiffs costly efforts
to generate or collect it; (iv) the defendant’s use of the information is in direct
competition with a product or service offered by the plaintiff; and (v) the ability
of other parties to free-ride on the efforts of the plaintiff would so reduce the
incentive to produce the product or service that its existence or quality would
be substantially threatened.15
   Unburdened as it is by limitations on judicial common lawmaking or federal
preemption doctrine, Congress might have greater freedom than federal courts or
states to expand upon the tort recognized in International News Service. It is plain,
however, that H.R. 2652 would constitute, not a modest extension of the “ hot
news” misappropriation tort, but a dramatic extension of the tort recognized in
the case. See House Report at 17 (explaining that H.R. 2652 would “ preserve
the holding” of International News Service, but would reach far beyond that case
to make impermissible much conduct that does not fall within the “ narrow
scope,” id., of that holding). H.R. 2652 would not require, a civil plaintiff or
a federal prosecutor, to prove that the value of the information be highly time-
sensitive, or that the ability of other parties to free-ride on the efforts of the plain­

   15 Indeed, the “ unusual circumstances” in International News Service itself may not have been limited to misappro­
priation simphciter. The Associated Press alleged that the International News Service had done far more than simply
republish the facts conveyed in the Associated Press’s stories. The International News Service allegedly had bribed
employees of A ssociated Press subscribers for an early look at breaking news, 248 U.S at 231, occasionally had
sold Associated Press’s stories “ bodily,” i.e., without rewriting them, id., and had falsely represented to its readers
that the news transmitted was the result of International News Services’s own investigation, id at 242. Such factors,
the Court acknowledged, “ accentuated] the wrong,” even if they were not “ the essence of it.’ ’ Id


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tiff would so reduce the incentive to produce the product or service that its exist­
ence or quality would be substantially threatened. Moreover, due to the ambiguity
as to the scope of the limitation that there must be a demonstration of harm to
the potential market, it is not at all clear that H.R. 2652 would even require proof
that the offending use or extraction be committed by a person in direct competition
with a product or service offered by the plaintiff, or even that a use was nontrans-
formative and for a commercial purpose. In contrast, the Court in International
News Service repeatedly emphasized that the tort it was identifying would not
extend to the copying and dissemination of news stories by members of the public,
as opposed to by competitors of the Associated Press. 248 U.S. at 239-41.16
   Accordingly, to the extent that Feist may be read to have construed the Intellec­
tual Property Clause to have established a kind of constitutionally prescribed
public domain for factual material on which Congress may not infringe (absent,
perhaps, private contractual agreements), a broad expansion of the “ hot news”
tort would appear to raise serious constitutional concerns. H.R. 2652— which
would apply well beyond the context of direct competitors, let alone the context
of time-sensitive direct competition— would therefore raise substantial questions
under Feist (and under the First Amendment, see infra) that would not be raised
by a less ambitious statute that codified a limited International News Service­
like tort. See Reichman & Samuelson, Intellectual Property Rights in Data?, 50
Vand. L. Rev. at 139-45.

        IV. Possible First Amendment Limitations on the Commerce Power

   Even if the Intellectual Property Clause does not itself impose constraints on
Congress’s Commerce Clause power, the First Amendment might nevertheless
limit the type of protection that Congress can provide against the “ use” and
“ extraction” of factual compilations.
  One of the principal aims of the First Amendment is to “ secure ‘the widest
possible dissemination o f information from diverse and antagonistic sources.’ ”
New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964) (quoting Associated

   16 For example:
          D efendant insists that when, with the sanction and approval o f complainant, and as the result of the
      use o f its news for the very purpose for which it is distributed, a portion of complainant’s members commu­
      nicate it to the general public by posting it upon bulletin boards so that all may read, or by issuing it
      to newspapers and distributing it indiscriminately, complainant no longer has the right to control the use
      to be made o f it; that when it thus reaches the light o f day it becomes the common possession of all
      to whom it is accessible, and that any purchaser o f a newspaper has the right to communicate the intel­
      ligence which it contains to anybody and fo r any purpose, even for the purpose of selling it for profit
      to newspapers published for profit in competition with com plainant’s members.
         T he fault in the reasoning lies in applying as a test the right o f the complainant as against the public,
      instead o f considering the rights o f complainant and defendant, competitors in business, as between them­
      selves. The n g h t o f the purchaser of a single newspaper to spread knowledge of its contents gratuitously,
      for any legitimate purpose not unreasonably interfering with com plainant’s nght to make merchandise of
      it, may be admitted, but to transmit that new s for commercial use, in competition with complainant—
      which is what defendant has done and seeks to justify— is a very different matter.
Id. at 239


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Press v. United States, 326 U.S. 1, 20 (1945)). In accordance with this objective,
the First Amendment imposes significant constraints on the ability of the govern­
ment to restrict the dissemination of information that has been publicly disclosed
and that the disseminator has lawfully obtained. For example, although the
Supreme Court has been careful never to hold categorically that publication of
lawfully obtained truthful information “ is automatically constitutionally pro­
tected,” see The Florida Star v. B.J.F., 491 U.S. 524, 541 (1989), the Court has,
on several occasions, held that “ the government may not generally restrict individ­
uals from disclosing information that lawfully comes into their hands in the
absence of a ‘state interest of the highest order.’ ” United States v. Aguilar, 515
U.S. 593, 605 (1995) (quoting Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103
(1979)). See also Butterworth v. Smith, 494 U.S. 624, 632 (1990).17 And even
if the state has such an interest, “ punishment may lawfully be imposed, if at
all, only when narrowly tailored to a state interest of the highest order.” Florida
Star, 491 U.S. at 541.18 What is more, even in situations in which the government
hypothetically could impose subsequent sanctions for the publication or copying
of certain information, there is a particular concern about imposing a prior restraint
on a secondary recipient from disseminating noncommercial speech. See, e.g., New
York Times Co. v. United States, 403 U.S. 713 (1971). That is true even where
the information was unlawfully obtained as an initial matter. Id.
   To be sure, cases such as New York Times v. Sullivan and Florida Star are
not directly on point. Those cases involved governmental attempts to suppress
certain types of information from being disseminated on the basis of content. By
contrast, H.R. 2652 would not target any particular types of messages for suppres­
sion. It would instead prescribe the means under which collections of information

   17 This same restriction does not necessarily apply if the information is secret, confidential, or classified, and
is provided to another on the express condition that it not be further disclosed For example, the Court has upheld
the constitutionality of governmental restrictions on its own employees’ activities to ensure that those employees
do not disclose classified information belonging to the government itself. The Court explained in Snepp v United
States, 444 U S 507, 509 n 3 (1980), that such restrictions on employee conduct generally will not violate the
First Amendment so long as they are a “ reasonable means” o f protecting the government’s “ compelling interest
in protecting . . the secrecy o f information important to our national security ” Similarly, a court may provide
trade secrets to a plaintiff as part o f discovery in a civil lawsuit, subject to the condition that the plaintiff not
further disseminate such secrets Seattle Times Co v Rhinehart, 467 U S 20 (1984) And even a private party
can create enforceable limits on the right to publish confidential information that it shares with another, pursuant
to state laws of contract or promissory estoppel that are “ generally applicable” (i e , that do not single out speech
for disfavored treatment) See Cohen v Cowles Media Co , 501 U S 663, 669-71 (1991) (whereas First Amendment
is not implicated by application o f “ generally applicable law s” to violations involving speech or the press, there
is a greater constitutional problem where, as in Florida Star, the “ Slate itself define{s] the content of publications
that would trigger liability” ). These cases would not be directly applicable to the proposed bill, however, in that
they involved restrictions on the person to whom the information had been distributed under the confidentiality
agreement, and not to restrictions on third parties who would be subsequent users or disseminators of such informa­
tion
   18On occasion, the Court has indicated that this demanding standard applies only to information concerning “ ‘a
matter of public significance*” See, e g , Florida Star, 491 U S . at 533 (quoting Smith, 443 U S at 103) See
also Dun & Bm dstreet, 472 U S at 759 (plurality opinion) (speech on matters of “ purely private concern” entitled
to less First Amendment protection in defamation cases); id at 764 (Burger, C J , concurring in pertinent part),
id. at 773-74 (W hite, J., concurring in pertinent part) But see Florida Star, 491 U.S. at 541 (omitting the “ matter
of public significance” standard in the Court’s ultimate holding, quoted in the text above)


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 that had been complied may be used by others. Namely, it would require users,
in certain circumstances, to expend great effort independendy before using
information contained in a collection that itself had been compiled only after great
effort.
   This ground of distinction hardly dispenses with the concern that H.R. 2652
trenches on First Amendment rights. Copyright protection similarly does not seek
to suppress certain types of messages. It, too, merely prescribes the means by
which information may be used by others. Nevertheless, the Court has concluded
that the First Amendment may impose limitations on the types of material that
may be copyrighted. Most significantly, in Harper & Row Publishers, Inc. v.
Nation Enterprises, 471 U.S. 539 (1985), the Court explained that the First
Amendment and the Copyright Act can be reconciled by virtue of the fact that
copyright law already embodies a distinction between original forms of expres­
sion— which are copyrightable— and facts (and ideas)—which are not:
[CJopyright’s idea/expression dichotomy “ strikefs] a definitional balance between
the First Amendment and the Copyright Act by permitting free communication
of facts while still protecting an author’s expression. No author may copyright
his ideas or the facts he narrates. 17 U.S.C. § 102(b).” Id. at 556 (citation omitted).
See also New York Times Co., 403 U.S. at 726 n.* (Brennan, J., concurring);
Feist, 499 U.S. at 344—45 (“ The most fundamental axiom of copyright law is
that ‘[n]o author may copyright his ideas or the facts he narrates.’ ” ) (quoting
Harper & Row, 471 U.S. at 556). Thus, for example, the Court held that although
direct quotations from President Ford’s biography were subject to copyright, the
historical facts contained in that biography were not subject to copyright and could
be freely copied. See Harper & Row, 471 U.S. at 565-66 & n.8 (applying copy­
right analysis only to “ verbatim quotes” from the biography, and excluding from
infringement consideration historical quotations attributed to third parties and to
government documents). See also Zacchini, 433 U.S. at 574 (right of publicity
would not serve to prevent reporting of facts about the cannonball act, as opposed
to display of the act itself in its entirety); id. at 577 n.13 (noting analogy to copy­
right’s expression/idea distinction).
   The distinction referenced in Harper & Row may be understood to reflect the
Court’s understanding that, in order to reconcile and accommodate copyright and
the First Amendment, no intellectual property rights can extend to facts that have
been released in the public domain.19 Moreover, even in the context of creative
forms of expression that can be copyrighted (as opposed to factual information,
which cannot), First Amendment values are further protected in the copyright law
by virtue o f the “ latitude for scholarship and comment traditionally afforded by
fair use.” Harper & Row, 471 U.S. at 560. Furthermore, the Intellectual Property

   19N im m er explains that this would be so even where a great quantity of labor and expense were necessary to
research and compile the facts: “ W ould anyone seriously suggest that the Washington Post was entitled to a copyright
on the facts o f the W atergate incident because its reporters, W oodward and Bernstein, through considerable labor,
expense and ingenuity, discovered such facts?” I N im m er on Copyright § 2 1l[E], at 2 - 172 30 to 172.31.


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         Constitutional Concerns Raised by the Collections o f Information Antipiracy Act


Clause ensures that expression itself must enter the public domain after the “ lim­
ited times” for which copyright protection is available. Indeed, where important
factual information could not satisfactorily be conveyed except by certain unique
expression, the First Amendment might even ensure that copyright protection for
such expression be denied or limited. See Nimmer on Copyright § 1.10[C][2], at
1-85 to 1-92.
   Accordingly, H.R. 2652, by providing protection for facts, raises serious First
Amendment concerns. It would restrict the ability of persons to use and dissemi­
nate factual materials that are not protected by copyright, and it arguably would
do so even in circumstances where the copyright law would not protect creative
expression.
   We can imagine two arguments that might be made in support of H.R. 2652
against a First Amendment challenge. First, it remains the case that in Inter­
national News Service, the Court permitted a tort for the dissemination of informa­
tion, as such. It is unclear to what extent the International News Service tort can
be reconciled with modem First Amendment doctrine. Nevertheless, that case was
approvingly cited in San Francisco Arts & Athletics, where the Court recognized
the possibility that the unauthorized use of an Olympic logo could impermissibly
undermine the “ owner’s” legitimate commercial interests, even in the absence
of a demonstration that such a use would be confusing to consumers. 483 U.S.
at 541. As the Court there explained, “ [t]here is no question that this unauthorized
use could undercut the [United States Olympic Committee’s] efforts to use, and
sell the right to use, the word in the future, since much of the word’s value comes
from its limited use.” Id. at 539. Thus, “ [e]ven though this protection may exceed
the traditional rights of a trademark owner in certain circumstances, the application
of the Act to . . . commercial speech is not broader than necessary to protect
the legitimate congressional interest and therefore does not violate the First
Amendment.” Id. at 540. The Court went on to reject the claim that the restriction
violated the First Amendment because it reached noncommercial, promotional uses
of the word. “ The mere fact that [petitioner] claims an expressive, as opposed
to purely commercial, purpose, does not give it a First Amendment right to
‘appropriat[e] to itself the harvest of those who have sown.’ ” Id. at 541 (quoting
International News Serv., 248 U.S. at 239^40). San Francisco Arts & Athletics
did not consider a~b”rbad prohibitibhligaihst the dissemination of factual informa----------
tion of the type that is at issue here; therefore it did not implicate the First Amend­
ment doctrine discussed above. Nonetheless, that case’s favorable reference to
International News Service in response to a different First Amendment argument
indicates that the former case provides some authority for a possible intellectual
property exception to certain First Amendment constraints that would apply out­
side the intellectual property context.
   Even if International News Service does indicate that the First Amendment per­
mits some anti-copying protection for nonoriginal factual information, however,

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it must be emphasized that H.R. 2652 raises serious constitutional concerns
because it provides protection that is much broader than that at issue in Inter­
national News Service. Unlike the “ hot news” misappropriation tort that the Court
recognized in International News Service, the bill would not create liability only
for “ competitive and systematic interference with dissemination of unpublished,
partially published or access-controlled information,” where “ the timeliness of
the information makes its commercial value of short duration.” Ginsburg, No
“Sw eat” ?, 92 Colum. L. Rev. at 357; see also NBA v. Motorola, 105 F.3d at
852.
   Second, there is an important consideration that might distinguish H.R. 2652
from the prototypical First Amendment case where the government acts to limit
the use of publicly available information. As we explained above, in the usual
First Amendment cases, such as the ones cited at the beginning of this section,
the government’s restriction on the dissemination of information has the intent
and effect of constricting the total quantum of information that the public could
put to lawful and valuable use by singling out certain disfavored messages for
suppression. Because H.R. 2652 would simply regulate the means by which
information generally may be re-used, it arguably could be defended as a legiti­
mate attempt to recognize individual rights in intellectual property in order to
ensure in an overall increase in the amount of available, valuable factual informa­
tion (because of the heightened incentives to compile facts). See Ginsburg, No
 “Sw eat” ?, 92 Colum. L. Rev. at 386. It could be argued that such a statute—
like copyright’s protection of creative expression— would secure a wider
“ dissemination of information from diverse and antagonistic sources,” New York
Times, 376 U.S. at 266, than would result from a regime in which factual compila­
tions are protected against reproduction only by “ thin” copyright and (perhaps)
by state contract law.
   We should note, however, that the above-stated rationale— that protection
against reuse and copying of factual compilations could increase, rather than
decrease, the existence of useful knowledge—would be in some tension with the
premises o f the Court’s holdings in Feist and with the Court’s and Congress’s
exclusion of copyright protection for facts, reflected in the Copyright Act and
in cases such as Harper & Row. In those contexts, the Congress and the Court
have concluded that, whereas protection against reuse of expression has the effect
of increasing the output of unique and original writings, analogous protection of
facts would, on the whole, impede the progress of knowledge. In addition, the
strength of the argument would no doubt turn in large part on the scope of the
protection afforded by H.R. 2652. To the extent it would apply even to non­
commercial, transformative uses, it would appear to be far more vulnerable to
constitutional attack on First Amendment grounds.

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               V. Possible Ways in Which H.R. 2652 Might be Narrowed

   It may be the case that any “ misappropriation” statute such as H.R. 2652
enacted pursuant to the Commerce Clause “ may prove difficult to reconcile with
Feist's constitutionally derived endorsement of free-riding on previously gathered
information.” Ginsburg, No “Sw eat” ?, 92 Colum. L. Rev. at 341. Such a statute
might also raise serious First Amendment problems, no matter how it is crafted.
We do, however, believe that H.R. 2652 could be narrowed in several ways that
would lessen the risk of constitutional invalidity. Each of these suggestions would
have the effect of preserving more of what is now understood to constitute the
public domain, in which facts could freely be copied in furtherance of important
scientific, educational, and analogous objectives.
   The easiest and most direct way to cabin the constitutional issues would be
to limit the statutory liability to the sort of “ hot news” misappropriation tort
that the Court recognized in International News Service. The law could, for
example, create liability for “ competitive and systematic interference with
dissemination of unpublished, partially published or access-controlled informa­
tion,” where “ the timeliness of the information makes its commercial value of
short duration.” Ginsburg, No “Sweat” ?, 92 Colum. L. Rev. at 357. The elements
of a claim under such a statute could be: (i) that the plaintiff generates or collects
information at some cost or expense; (ii) that the value of the information is highly
time-sensitive; (iii) that the defendant’s use of the information constitutes free­
riding on the plaintiff s costly efforts to generate or collect it; (iv) that the defend­
ant’s use of the information is in direct competition with a product or service
offered by the plaintiff; and (v) that the ability of other parties to free-ride on
the efforts of the plaintiff would so reduce the incentive to produce the product
or service that its existence or quality would be substantially threatened. See NBA
v. Motorola, 105 F.3d at 852.
   Absent such a fundamental change in H.R. 2652, the following changes would
tend to alleviate some of the constitutional concerns20:

          1. The provision could dispense with the time-sensitivity element
          of the International News Service tort of misappropriation, but still
          require proof that the defendant's use of the information constitutes-----------------
          free-riding on the plaintiffs costly efforts to generate or collect it;
          that the defendant’s use of the information is in direct competition
          with a product or service offered by the plaintiff; and that the ability
          of other parties to free-ride on the efforts of the plaintiff would
          so reduce the incentive to produce the product or service that its
          existence or quality would be substantially threatened. Again, we

   20 We should not be understood as suggesting that any or all o f these changes would, or would not, be preferable
as a matter of policy


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                          Opinions o f the O ffice o f Legal Counsel in Volume 22


          emphasize that a statute of even this more limited scope would still
          raise substantial constitutional concerns for the reasons provided in
          the previous sections.

          2. The prohibition in § 1202 could be expressly limited to nontrans-
          formative uses and extractions by direct competitors in the par­
          ticular market for the database in question.21 This could be accom­
          plished in part by expressly including a “ fair use” exception akin
          to that contained in the Copyright Act, and other like statutory
          exceptions, at least as expansive as those found in the Copyright
          Act.22 As noted at the outset, it may well be that H.R. 2652 is
          intended to incorporate something approximating the fair use
          standard for copyright by virtue of its reference to two of the four
          statutory fair use factors contained in the Copyright Act’s fair use
          provision. Nonetheless, in light of the difficulties in determining
          how a fair use exception would apply to facts, given that it has
          thus far developed in the context of copyright, which does not pro­
          tect facts, it would be advisable to be far more clear on this point
          than the present statute is. Moreover, for constitutional reasons, it
          would probably be advisable to provide even greater protection for
          the public’s interest in freely exchanging information here than
          would be necessary outside the context of a statute that would pro­
          vide intellectual property interests in factual information. As a
          result, a broad definition of fair use would be appropriate.

         3. The duration of the protection could be substantially shortened,
         to the briefest period that would provide sufficient incentives for
         the data collection. Perpetual protection probably is unnecessary to
         provide sufficient incentive to the creation of databases.

         4. Instead of effectively prohibiting certain use or extraction by sub­
         jecting it to potential treble-damage judgments, Congress could
         consider permitting widespread copying on reasonable terms and
         conditions, under a system of compulsory, nondiscriminatory
         licensing. That would allow the compiler to receive fair value for
         the cost of compiling, but might not unreasonably deter valuable
         reuses of the information.23

  2 lSee, e g , Jessica Litman, After Feist, 17 U Dayton L Rev. at 615, Ginsburg, No "Sw eat"?, 92 Colum. L.
Rev at 386
  22See Reichman & Samuelson, Intellectual Property Rights in D a ta 9, 50 Vand. L Rev at 146, 155-57.
  23See Ginsburg, N o “Sw eat"?, 92 Colum. L. Rev. at 386-87; Reichman & Samuelson, Intellectual Property
Rights in Data?, 50 Vand L. Rev at 146


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         Constitutional Concerns Raised by the Collections o f Information Antipiracy Act


       5. The provisions for injunctive relief and impoundment could be
       eliminated, in light of the disfavored status under the First Amend­
       ment of prior restraints. Cf. Campbell, 510 U.S. at 578 n.10.

       6. The prohibition in § 1202 should be narrowed so that it extends,
       at most, only to those portions of a compilation that were gathered,
       organized or maintained through investment of substantial
       resources. There is little apparent justification for constraining third
       parties’ use of portions of a collection that were not the result of
       such an investment.

                                       VI. Conclusion

  H.R. 2652, the Collection of Information Antipiracy Act, raises difficult and
novel questions of constitutional law. It is clear, however, that, under current
Supreme Court case law, the bill, in its current form, raises serious constitutional
concerns.

                                                          WILLIAM M. TREANOR
                                                       Deputy Assistant Attorney General
                                                           Office o f Legal Counsel




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