Historical, Conceptual & Legal Framework for Understanding the 3taps Dictums:
“Public Facts are Public Property”
and
“Open Access Requires Equal Access”
3taps believes in open exchanges between seekers and providers. The notion of a data commons of all exchange postings implies that public postings of interest to seekers and providers are public property -- openly and equally available to all.
The notion that postings, once made public, might somehow still be controlled as if they were the private property of the channel through which they originated is anathema to the 3taps vision of the public good. The 3taps mission is to reduce the technical friction in building a data commons, as well as remove any legal uncertainty regarding the freedom of others to make use of the resulting public resource. In- and out-bound syndication of public postings is a right of all, rather than a permission based privilege controlled by the few.
In opposition to the 3taps view of public facts as public property are trends in copyright and contract law that have at times and in ways shifted power to forces that seek to profit from limiting rather than opening access to data. Those who have collected data via “the sweat of their brow” often hope to keep control of their data – even if it falls short of being a creative expression. Similarly, they attempt to concoct terms of use restrictions on public data that amounts to the type of limitation that rightly applies only to confidential or private information. Increasingly, the attempts to control data access are being made by parties who have not even generated the content in question but have only collected and re-published it from end users who hold (if anyone holds) any copyright claim on the user generated content (UGC) in question.
The discussions below track an evolution in thinking where, at first, courts attempted to apply property concepts from the physical world related to trespass as a means of regulating access to data. After some problematic outcomes and input from the legal community, new norms of access that are more applicable to the digital reality of the internet are gaining some credence.
Of most recent note is the U.S. 2nd Court of Appeals stepping in to overrule a lower court finding on the FlyOnTheWall case brought by major Wall Street Investment Banks. The banks picked on the small internet firm (with a staff of 28) to make a point about wanting to control data that they preferred stay private – even after their own clients had leaked it to the public. The issue at hand related to the posting of “hot news” stock recommendations that had been passed on from the bank’s clients or own staff, which FlyOnTheWall (and other news services) rebroadcast to its user base. Rather than take on larger and better financed firms that were doing the same thing as the tiny internet startup, the Banks picked on an entity with limited resources and therefore apparently little hope of surviving a sustained legal challenge. The issue garnered friend of the court briefings from a slew of major news and publishing organizations (including the New York Times), a joint Google/Twitter briefing, and an independent submission from the Electronic Freedom Foundation.
The 2nd Court of Appeals saw through to the First Amendment issues and put its stamp on where it stood as far as vindicating the perspective of Google/Twitter/EFF against the status quo mentality of mainstream banks and media companies. It remains an extension of thinking to equate what the Court said about “hot news” affecting buy/sell exchanges for public stock listings to the more humble “little news” of individual postings of exchanges between seekers and providers – but our 3taps belief is that the precedent is consistent with the premise that “public facts are public property” and that “open access requires equal access.”
The historical, conceptual, and legal path arguably goes back hundreds of years, but for our purposes here, we’ll start with a discussion of cases and legal scholarship in the 1990s. In the cases that follow, we’ll see courts and scholars struggling with three types of data control issues:
1) Situations where someone is upset with how the data is being sourced
2) Situations where someone is upset over what data is in the hands of a 3rd party regardless of how that data has been sourced
3) Situations were someone is upset with who has the data when that 3rd party is someone (typically a competitor) they don’t like/want to have the data (even if many other parties are allowed access)
The following selections are not meant to be exhaustive and are certainly not implied to reflect a scholarly review. What they do mean to do is show high and low water marks for how actors in the legal system and public policy arena have struggled with the boundaries of copyright law, the notion of the public domain, and the ideal of a data commons.
Feist Publications, Inc v. Rural Telephone Sercice Co., Inc.
1991 No. 89-1909 Supreme Court of the United States
http://itlaw.wikia.com/wiki/Feist_v._Rural_Telephone
Feist Publications made area-wide telephone directories and typically licensed the data from phone companies that already had compilations of users. Rural telephone refused to license its data and Feist used the listings without Rural’s consent. Rural sued Feist for copyright infringement.
Result: The Supreme Court found that the telephone book as a whole was copyrightable but that the compilation of listings and the individual listings were not copyrightable. Furthermore, the historical trend towards giving copyright protection to anyone who invested a significant amount of time and energy into their work (aka “sweat of the brow”) was rejected by the Supreme Court. “Information” is not copyrightable.
NBA v. Motorola
http://itlaw.wikia.com/wiki/NBA_v._Motorola
Motorola’s paging division had a stats service that sent out real-time updates of NBA scores and statistics taken from broadcasts of games. The NBA sued for misappropriation under New York state Law.
Result: In its ruling, the appellate court established a new test for misappropriation claims under the INS doctrine (a turn of the century case pertaining to reusing news feeds from Associated Press). Under the test, to be actionable, the plaintiff's misappropriation claim must meet five criteria:
1. plaintiff generates or gathers information at cost;
2. the information is time-sensitive;
3. defendant's use of the information constitutes free-riding on the plaintiff's efforts;
4. defendant is in direct competition with a product or service offered by the plaintiffs; and
5. the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.
Register.com, Inc. v. Verio, Inc.
http://www.internetlibrary.com/cases/lib_case23.cfm
The court issued a preliminary injunction enjoining Verio from using a search robot to obtain information from Register.com’s publicly available Whois domain registry database. Not only was this argued as a Terms of Use violation, but also as an act of trespass under the Computer Fraud and Abuse Act. Even though Verio never consented to be bound by the browser wrap TOU, the courts still held (and still affirmed in 2004) that Verio was bound by Register’s terms – even though that data was publicly available due to the terms of the Register Account Agreement with ICANN.
Result: the idea of “harm” necessary to establish a claim for trespass to chattels was introduced into cyberspace as a metaphor from the physical world….
eBay v. Bidder’s Edge
http://en.wikipedia.org/wiki/EBay_v._Bidder%27s_Edge
The case was a leading example of the “trespass to chattels” doctrine in that eBay sought to stop Bidder’s Edge, an auction data aggregator, from using a crawler to gather data from eBay’s website. eBay successfully argued, at the time, that while Bidder’s Edge alone had not caused it to have to add additional capacity to its servers, it was conceivable that it could be inundated by other like crawlers, and therefore was at risk of harm. Additionally, eBay argued that Bidder’s Edge was violating its TOU.
Result: the ruling put Bidder’s Edge out of business and was heavily criticized by some members of the legal community. Three years later (2003) the California Supreme Court implicitly overruled the case in Intel v. Hamidi. The slippery slope logic of the eBay v. Bidder’s Edge case regarding spiders to enter a publicly available web site was discredited by the higher court. This was a milestonet for having the courts decline to extend common law trespass claims to the computer context, absent actual damage.
The Second Enclosure Movement and the Construction of the Public Domain
2003 James Boyle Duke University and the Center for the Study of the Public Domain
Lays forth the intellectual framework of threats to the public domain by new state-created property rights over intellectual property. A historical linkage between the first enclosure movement in British history and the anti-monopolist criticisms of the Framers of the U.S. Constitution. Argues that the public domain must be “invented” before it is saved.
Cybercrime’s Scope: Interpreting “Access” and “Authorization” in Computer Misuse Statutes by Orin S. Keer
10-October-2003 George Washington University Law School
Traces the misguided notion of treating any breach of contract with a computer owner as analogous to a form of trespass – and therefore worthy of criminalization. Covers the overbroad application of contract theories of authorization as applied to relatively innocuous activity. Suggests an alternate (narrower) construct for access that still respects privacy; is practical; and avoids constitutional difficulties.
Field v. Google
April 2004
http://itlaw.wikia.com/wiki/Field_v._Google
http://en.wikipedia.org/wiki/Field_v._Google
A poet (and a lawyer) acting as a copyright troll placed 51 poems on the web and then sued Google when it indexed and cached the materials.
Result: First, the court found that the plaintiff had granted Google an implied, nonexclusive license to display the work because “[c]onsent to use the copyrighted work need not be manifested verbally and may be inferred based on silence where the copyright holder knows of the use and encourages it.”[3] Field’s failure to use metatags to instruct the search engine not to cache could reasonably be interpreted as a grant of a license for that use.
Access Denied: Improper Use of the Computer Fraud and Abuse Act to Control Information on Publicly Accessible Internet Websites
4/30/2004 Christine D Galbraith University of Maine School of Law
Points out that Computer Fraud and Abuse Act (CFAA) was enacted in 1984 as a criminal statute to address hacking and the growing problem of computer crime, but that recent cases had arisen where firms were using the terms to attempt to control competition and maintain market share – specifically by preventing entities deemed “un-welcomed” from obtaining data on their websites. By allowing owners to protect information that is not protectable under copyright law, the CFAA unconstitutionally overrides the delicate balance of rights between authors and the public. Such a sweeping reading of prohibited acts threatens the free flow of information that belongs in the public domain.
Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power
2006 Dotan Oliar University of Virginia School of Law
The article studies the neglected record from the 1787 Constitutional Congress regarding the Intellectual Property Clause. Argues that the clause regarding the promotion of the progress of science and art should be read as an intent to limit (rather than expand) Congress’s intellectual property power.
Access Denied by David Nimmer
2007 UCLA School of Law
Explores the distinction regarding copyright law for generally published works and all others. The 1909 Act stated that generally published works required a copyright notice whereas all others did not. Historically, the millions of poems, letters, stories, photographs, drawings, etc. created by the public were not subject to federal statutory protection. Rather, only a minuscule fraction of all such works achieved that distinction (published works). Now-a-days, any created work that shows “probative similarities” to another becomes grounds for a potential copyright infringement suit. Qualifying circumstances for when to apply copyright law to preclude copying needs to be rethought or else the playing field could precipitously tilt in favor of copyright plaintiffs.
Southwest Airlines Co Plaintiff, v. Boardfirst, L.L.C., Defendant
September 12, 2007
Southwest successfully enforced a “browserwrap” contract that prohibited Boardfirst from operating a robot that automated the garnering of early boarding passes for passengers on its flights. The court sided with the public interest in having Southwest see its contracts enforced – trumping Boardfirst’s functional enhancement of providing an automated assurance of early boarding privileges for Southwest customers using its service. Southwest terms of use stated that its site was restricted to personal use unless the individual was an approved Southwest travel agent. The TOU specifically stated that “third parties may not use Southwest websites for the purposes of checking Customer’s in online or attempting to obtain for them a boarding pass in any certain group.”
The case suggested that sending cease and desist letters citing a 3rd party for using a web site for commercial rather than personal use could/would be enforced by a court of law.
Implied License: An Emerging New Standard in Copyright Law
2008 Orit Fischman Afori College of Management Academic Studies Laws School, Israel
Lays the intellectual foundation for an extension of the “implied license” doctrine beyond its previously limited scope. Whereas previous conceptions of implied license look at subjective or objective intent of the parties, the premise here is that courts should look first at public policy considerations in order to bring reasonableness into the law of copyright as it affects digital media. The term “implied license” is use metaphorically as it actually is meant to override the traditional constraints of contract law – even when it means overriding the intent of the relevant parties. The scope of application has implications of various practices such as linking, framing, and the operation of search engines.
News giants: limit free riders from rewriting “our” facts
Jacqui Cheng
http://arstechnica.com/telecom/news/2010/06/news-heavyweights-restrain-free-riders-from-reposting-facts.ars
06/2010
Brief for Amici Curiae Google Inc. and Twitter Inc. In Support of Reversal 10-1372-cv Barclays Capital Inc., Merrill Lynch Pierce, Fenner & Smith Incorporated, and Morgan Stanley & Co. Incorportated (Plaintiffs-Appellees)v. TheFlyOnTheWall.com Inc. (Defendant-Appellant)
06/21/2010
Brief Amici Curiae of EFF In Support of Neither Party 10-1372-cv
Barclays Capital Inc., Merrill Lynch Pierce, Fenner & Smith Incorporated, and Morgan Stanley & Co. Incorportate (Plaintiffs-Appellees)v. TheFlyOnTheWall.com Inc. (Defendant-Appellant)
Brief Amici Curiae of Advance Publications, Inc., Agence France-Presse, A. H. Belo Corporation, The Associated Press, Belo Corp, the E.W. Scripps Company, Gannett Company, Inc. The McClartchy Company, Newspapers Association of America, The New York Times Company, Philadelphia Media Holdings, LLC, Stephens Media LLC, Time Inc., and The Washington Post, Not In Support of Neither Party 10-1372-cv Barclays Capital Inc., Merrill Lynch Pierce, Fenner & Smith Incorporated, and Morgan Stanley & Co. Incorportate (Plaintiffs-Appellees)v. TheFlyOnTheWall.com Inc. (Defendant-Appellant)
6/21/2010
United States Court of Appeals For the Second Circuit 10-1372-cv Barclays Capital Inc., Merrill Lynch Pierce, Fenner & Smith Incorporated, and Morgan Stanley & Co. Incorportate (Plaintiffs-Appellees)v. TheFlyOnTheWall.com Inc. (Defendant-Appellant)
6/20/2011
“Second Circuit Redefines Elements of ‘Hot News’ Misappropriation Claims”
Skadden, Arps, Slate, Meagher & Flom LLP
June 29, 2011 Anthony J. Dreyer, Stuart D. Levi, Mary E. Rasenberger
http://www.skadden.com/Index.cfm?contentID=51&itemID=2466
The Creative Commons Public Domain Mark:
https://creativecommons.org/weblog/entry/23830
James Boyle:
http://www.law.duke.edu/fac/boyle/
Center for the Study of the Public Domain Duke University
http://www.law.duke.edu/cspd/
Larry Lessig:
What we can learn from conservatives
http://www.ted.com/talks/lessig_nyed.html
Righthaven: Copyright troll
http://tech.fortune.cnn.com/2011/01/06/righthaven-qa-cd-letters-dont-stop-infringement/
