Statement by Rep. Rick Boucher (D-VA). House Telecom Subcommittee markup session. Re: HR 1858. Date: July 29, 1999. Source: This document was created by Tech Law Journal by transcribing from an audio recording of the hearing.

Rep. Boucher: Thank you very much, Mr. Chairman. I want to commend very much Chairman Bliley of the full Committee for his leadership in bringing this legislation before us, and also commend the other sponsors. And, I am pleased to encourage the Committee to report the legislation.

Having had an opportunity to review this issue, both in the House Judiciary Committee, and in this Committee, I am persuaded that the better approach is offered by Chairman Bliley through this legislation.

It is better targeted. It is more narrowly focused. It offers protection to those who create databases without incurring the risk of downside consequences with respect to the use of information contained in the database for other purposes. And I would say that the bill offered to the House Judiciary Committee, unfortunately, carries a much greater risk for the users of information that might be contained in the database.

Rep. Tauzin: Would the Gentleman yield?

Rep. Boucher: Yes. I would be happy to yield.

Rep. Tauzin: At this point, I thank the Gentleman. It is very encouraging to hear a member of the Judiciary Committee admit that this Committee does finer work. And, I appreciate his comments.

[laughter]

Rep. Boucher: Approximately half the time I try to say that, and the other half the time --.

I support this legislation with some degree of reluctance. And that reluctance doesn't stem from any of its provisions, which I think are well drafted. My reluctance is that I am not completely convinced that Congress needs to legislate in this area.

It is true that the U.S. Supreme Court has denied copyright protection to those who assemble facts from a variety of sources and compile those into a database, because the assemblage of those facts is not an original work. And copyright protection only extends to original works. But there are other possible remedies that could be applied by database creators.

There is a very interesting case that is pending in the courts today in which the New York Times has sued amazon.com. Amazon.com is offering discounts to its web site visitors for books that are purchased from the New York Times best seller list. And in order to offer those discounts, amazon.com is republishing that best seller list on its web site. And the New York Times says that that list is the New York Times' property. And amazon.com has intruded onto the New York Times' right in that republication.

Among other remedies, the New York Times is seeking to apply the common law tort of misappropriation. A tort which I believe could be applicable in a broader sense to give legal protection to those who compile databases.

And I think that there is an argument to be made that before Congress passes legislation on the subject, we see what happens in the New York Times case and other suits where the effort to apply the tort of misappropriation for database creators is being sought.

Nevertheless, I think this legislation is well drafted. I think for present purposes it should be reported from this Committee. And then perhaps before this measure is enacted into law, members might want to consider whether state causes of action, if further developed, could provide the remedies that database creators are seeking.

Thank you very much, Mr. Chairman.