REFERENCES

1 . Exec. Order No. 12,906, 3 C.F.R. 882 (1994), links the National Information Infrastructure and spatial data.

2 . See Henry H. Perritt, Jr., Commercialization of Government Information: Comparisons between the European Community and the United States, 4 INTERNET RESEARCH, Summer 1994, at 7.

3 . Certain parts of the legal analysis of this article overlap a companion article published in the William & Mary Bill of Rights Journal, dealing with legal rights to access public information of all kinds. Henry H. Perritt, Jr., Sources of Rights to Access Public Information, 4 WM. & MARY BILL OF RIGHTS J. 179 (1995).

4 . An example would be an ASCII file (readable by any desktop computer word processing program) consisting of the text of a statute.

5 . Billing and collection value might seem to shift points of view because it is more valuable to the seller than to the purchaser. On the other hand, the presence of billing and collection value makes it easier for the purchaser to buy something on the spot and therefore can be a form of value to the purchaser as well.

6 . Marketing represents promotion value. The array of added value elements is described more fully in Henry H. Perritt, Jr., Unbundling Value in Electronic Information Products: Intellectual Property Protection for Machine Readable Interfaces, 20 RUTGERS COMP. & TECH. L.J. 415 (1994).

7 . A page on a World Wide Web server or a cluster of Gopher menu items are examples of pure pointers. World Wide Web and Gopher are applications for information organization and retrieval on the Internet.

8 . Marvin A. Sirbu and other researchers at Carnegie Mellon University have proposed a billing and collection server that would use public key encryption to facilitate charging for resources obtained through the Internet. See Marvin A. Sirbu, Internet Billing Service Design and Prototype Implementation, in PROCEEDINGS, TECHNOLOGICAL STRATEGIES FOR PROTECTING INTELLECTUAL PROPERTY IN THE NETWORKED MULTIMEDIA ENVIRONMENT 67 (1994) (Harvard Kennedy School of Government & MIT Program on Digital Open High-Resolution Systems).

9 . Depending on how the state keeps its land records, the ownership records may be the basic layer, with survey information following.

10 . Economies of scope exist when the per unit cost is lower for a greater variety of unit types that are available from the same supplier. Demand economies of scope exist when economies of scope exist from the purchaser's perspective. In other words, in traditional publishing, demand economies of scope exist for a bookstore because a user faces lower per unit transaction cost when buying several items at once from a single, well stocked bookstore instead of searching through a series of bookstores. See F. SCHERER & D. ROSS, INDUSTRIAL MARKET STRUCTURE AND ECONOMIC PERFORMANCE 100-02 (3d ed. 1990) (explaining economies of scope). See generally David J. Teece, Economies of Scope and the Scope of the Enterprise, 1 J. ECON. BEHAV. & ORG. 223 (1980) (enterprise scope determined by transaction costs and realization of economies associated with simultaneous supply of inputs common to processes for producing distinct outputs); David J. Teece, Towards an Economic Theory of the Multiproduct Firm, 3 J. ECON. BEHAV. & ORG. 39 (1982) (exploring economies of scope for different inputs).

11 . See http://thomas.loc.gov/.

12 . See generally Gingrich Inaugurates Thomas: Republicans to Rethink Access to Government Info, ELECTRONIC PUBLIC INFORMATION NEWSLETTER, Jan. 13, 1995, at 1-3 (describing Thomas system, running on an RISC-Chip Unix platform operating through a T1 connection to the Internet).

13 . WAIS is a proprietary name owned by certain entrepreneurs originally associated with Thinking Machines Corporation.

14 . This is significant for extension of the GILS model into the broad family of GIS information. Elliot Christian, of USGS was the principal architect and proponent of the GILS approach finally adopted. USGS has made available for free or at very low prices a variety of videotapes and other training materials on the Internet and on GILS.

15 . See Henry H. Perritt, Jr., Format and Content Standards for the Electronic Exchange of Legal Information, 33 JURIMETRICS J. 265 (1993).

16 . Alaska Airlines v. United Airlines, 948 F.2d 536, 548 (9th Cir. 1991) (antitrust law tolerates efficient monopolies and natural monopolies; rejecting monopoly leveraging attack on computerized airlines reservation); Rudolph J. Peritz, A Counter-History of Antitrust Law, 1990 DUKE L.J. 263, 304; Comment, Unestablished Businesses and Treble Damage Recovery under Section Four of the Clayton Act, 49 U. CHI. L. REV. 1076, 1097 n. 55 (1982).

17 . See Thomas W. Hazlett, Duopolistic Competition in Cable Television: Implications for Public Policy, 7 YALE J. REG. 65, 117 (1990) (transaction costs of identifying efficient monopoly are high, especially because of the "moral hazard" of franchising agents eager to justify exclusive arrangements).

18 . Market fragmentation is a natural result of the possibility of unbundling in new technological environments.

19 . See generally Henry H. Perritt, Jr., Public Information in the National Information Infrastructure, Report to the Regulatory Information Service Center, General Services Administration, and to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, May 20, 1994 (available electronically through the Internet on the Villanova Information Law Chronicle, http://www.law.vill.edu.).

20 . ABA Recommendation No. 102, adopted by the American Bar Association House of Delegates, Aug. 1990 (guidelines for applying Freedom of Information Act to electronic formats); ABA Recommendation No. 109C, adopted by the House of Delegates of the American Bar Association, Aug. 12-13, 1991 (guidelines for federal and state agency dissemination of public information in electronic form). Both ABA recommendations are available at http://www.law.vill.edu/Aba/adminlaw.html.

21 . Federal Agency Use of Computers in Acquiring and Releasing Information, 1 C.F.R. § 305.88-10 (1993); Henry H. Perritt, Jr., Electronic Acquisition and Release of Federal Agency Information: An Analysis of ACUS Recommendations, 41 ADMIN. L. REV. 253 (1989) (explanation of Recommendation 88-10 by its principal author); Henry H. Perritt, Jr., Federal Electronic Information Policy, 63 TEMPLE L. REV. 201 (1990) (elaboration of Freedom of Information Act concepts developed in Recommendation 88-10).

22 . 58 Fed. Reg. 36068 (July 2, 1993). In late 1994, OMB also released draft guidelines for applying FOIA to electronic formats.

23 . S. 1782 (To Amend Title 5, United States Code, to Provide for Public Access to Information in an Electronic Format), passed the Senate on August 25, 1994. 140 Cong. Rec. D1046-02, Aug. 25, 1994.

24 . See 44 U.S.C. § 3506(d), as amended by Paperwork Reduction Act of 1995, Pub. L. 104-13, 104th Cong., 1st Sess., 109 Stat. 163 (May 22, 1995) (requiring diversity and prohibiting exclusive arrangments); Committee on Government Operations, House of Representatives, Electronic Collection and Dissemination of Information by Federal Agencies: A Policy Overview, H.R. Rep. No. 560, 99th Cong., 2d Sess. 2 (1986) (criticizing exclusive arrangements preventing access to government information in electronic form).

25 . 5 U.S.C. § 552 (1988).

26 . See John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52 (1989) (reiterating basic principle but finding that records requested by defense contractor were within law enforcement exemption even though not originally created for law enforcement purposes); Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989) (burden on agency to show that requested records not within FOIA); Assembly v. Dep't of Commerce, 968 F.2d 916, 920 (9th Cir. 1992) (reiterating pro-disclosure policy of FOIA and affirming order that Commerce Department disclose computer tapes with census figures).

27 . 492 U.S. 136 (1989) (requiring Department of Justice to make available under FOIA copies of district court decisions in its possession).

28 . Justice Blackmun, the lone dissenter, thought that FOIA was not the appropriate vehicle for a commercial enterprise to obtain access to its raw material. 492 U.S. at 156, 157 (Blackmun, J., dissenting). The rejection of Justice Blackmun's views strengthens the inference that the FOIA is an appropriate vehicle for private publishers to obtain access to basic content for their publications.

29 . Tax Analysts recognized the appropriateness of borrowing definitions from records preservation statutes in interpreting the FOIA. 492 U.S. at 145 (quoting 44 U.S.C. § 3301 (1989)).

30 . 1 F.3d 1274, 1282-83 (D.C. Cir. 1993) (electronic versions were not merely extra copies of paper versions because electronic records contain certain additional data); id. at 1286-87 (same).

31 . Cf. Armstrong v. Executive Office of the President, 810 F. Supp. 335, 341 (D.D.C.) (enumerating features of electronic records not present in paper printouts of same records), aff'd, 1 F.3d 1274 (D.C. Cir. 1993). Many state courts have construed their FOIAs in this fashion. Cf. Petroleum Information Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1437 (D.C. Cir. 1992) (affirming order that agency disclose legal land description computer database file, and rejecting argument that the Department of the Interior need not provide magnetic tape on the ground that the material was available in paper form from other sources and from the agency itself).

32 . See, e.g., Jersawitz v. Hicks, 448 S.E.2d 352, 353 (Ga. 1994) (real estate deed records on computer tape); Maher v. Freedom of Information Comm'n, 472 A.2d 321, 325 (Conn. 1984) (Commission had power to compel agency to disclose computer tapes when requester paid the cost of production, notwithstanding statutory language that referred to disclosure of "printouts"); Stephan v. Harder, 641 P.2d 366, 374 (Kan. 1982) (computer file listing names of physicians and amount of public funds paid for abortions); In re Szik Szay, 436 N.Y.S.2d 558, 563 (Sup.Ct. 1981) (computerized county assessment rolls); Minnesota Medical Ass'n v. State, 274 N.W.2d 84, 88 (Minn. 1978) (computer tapes containing abortion data); Brownstone Publishers, Inc. v. New York City Dep't of Bldgs, 560 N.Y.S.2d 642, 643 (App. Div. 1990) (publisher intending to sell computer database on subscription basis entitled to computer formats with statistical information on every parcel of real property in New York City, where agency had proposed printing a million sheets of paper at a cost of $10,000 for the paper, taking five or six weeks, and having publisher reconvert into computer usable form at a cost of hundreds of thousands of dollars).

33 . In Margolius v. City of Cleveland, 584 N.E.2d 665 (Ohio 1992), the Ohio Supreme Court emphasized that "a set of public records stored in an organized fashion on a magnetic medium also contains an added value that inherently is a part of the public record. Here, the added value is not only the organization of the data, but also the compression of the data into a form that allows greater ease of public access." Id. at 669. "Consider two sets of identical public records kept on paper--;one set organized in a file cabinet, and another kept as a random set of papers stacked on the floor. Certainly we would not permit an agency to discharge its responsibility by providing access to random set while precluding the disclosure of the organized set, even though both sets are ‘readable' as required by the statute." In State ex rel. Athens County Property Owners Assoc. v. City of Athens, 619 N.E.2d at 440, the Ohio court of appeals, relying on Margolius, explained:

34 . The only occasion for considering the commercial nature of a requester's motivation is when access rights must be balanced against privacy rights under a privacy exemption to access duties. There, the scope of the privacy exemption depends on whether the invasion of privacy is "unreasonable" or "unwarranted." United States Dep't of Defense v. Federal Labor Relations Auth., 114 S.Ct. 1006, 1012 (1994) (to decide whether a record is within exemption 6, a court must "balance the public interest in disclosure against the interest Congress intended the exemption to protect" in order to decide whether the invasion of privacy would be "unwarranted").

35 . Nos. A155/156/157/158/159/178, Sept. Term 1994, 1995 WL 424423 (N.J. July 19, 1995).

36 . See Henry H. Perritt, Jr. & James A. Wilkinson, The Federal Advisory Committee Act After Five Years, 63 GEO. L. J. 725 (1975).

37 . In other words, state records access statutes should be written and applied as prescribed in the 1990 ABA policy statement, as most recent state FOI judicial decisions have done.

38 . 17 U.S.C. § 105 (1988).

39 . 17 U.S.C. §102 (1988) allows copyright in "original works of authorship." Facts are outside the scope of this phrase because no original effort is involved with respect to pre-existing facts. Section 102(b) itself states that copyright protection does not extend to "any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . ."

40 . See Mason v. Montgomery Data, Inc., 765 F.Supp. 353, 355 (S.D.Tex. 1991) (factual matters such as the abstract, tract boundaries and ownership name and tract size are not copyrightable), rev'd, 967 F.2d 135 (5th Cir. 1992) (underlying data could be portrayed in a variety of ways; thus the plaintiff's portrayal in its maps could be protected without preempting free use of the underlying facts).

41. 499 U.S. 340, 354 (1991) (impermissible to create monopoly through copyright without necessary justification of encouraging creation of writings by authors).

42 . See, e.g., National Rifle Ass'n v. Hand Gun Control Federal, 15 F.3d 559, 561 (6th Cir. 1994) (use of mailing list was fair use; noting that scope of prima facie copyright protection is limited to uses of a work that would undermine the incentive for creation). See also Sony Corp., 464 U.S. at 429 (discussing goals and incentives of copyright protection); Twentieth Century Music Corp. v. Akin, 422 U.S. 151, 156 (1975) ("ultimate aim is by this incentive [securing a fair return for author's creative labor] to stimulate artistic creativity for the general public good.").

43 . Of course, the principle that copyright protection is unavailable when it is unnecessary does not eliminate copyright protection for value added enhancements to public information as long as they are not supplied in the performance of a public duty. But the enhancements must entail some originality. The Supreme Court in Feist specifically rejected the idea that originality can result simply from "sweat of the brow" in gathering facts. Compilations are copyrightable only to the extent of their original selection or arrangement. "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." 499 U.S. at 349.

44 . See Rand McNally & Co. v. Fleet Mgmt. Systems, Inc., 591 F.Supp. 726, 736. (N.D. Ill. 1983).

45 . 628 F.2d 730 (1st Cir. 1980).

46 . Id. at 734.

47 . Id.

48 . Id. at 735.

49 . 548 F. Supp. 110 (1982), vacated, 559 F.Supp. 37 (N.D. Ga. 1983) (on unanimous request of parties after settlement).

50 . Id. at 113 (citing early cases).

51 . Id. at 114.

52 . Id.

53 . Id. at 732-34.

54 . Wheaton v. Peters, 33 U.S. (8 Peters) 591 (1834).

55 . Id. at 668.

56 . Banks v. Manchester, 128 U.S. 244 (1888).

57 . Id. at 253.

58 . 6 N.E. 559 (1886).

59 . "It is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes or the decisions and opinions of the justices." Id. at 560.

60 . 27 F. 61 (C.C.D. Minn. 1866) (denying statutory compiler who was "awarded" copyright as the lowest bidder an injunction against competing publication of legislative text).

61 . 91 F. 129 (6th Cir. 1898) (affirming denial of injunction against competing publisher of state code). Much of the opinion rejected the defendants' argument that they could not be enjoined from publication because they had been ordered by the state to publish their compilation.

62 . The court emphasized that "no one can obtain the exclusive right to publish the laws of a state in a book prepared by him." 91 F. at 137. If one cuts from another's book the general laws of a state and used the pages thus cut, and nothing more from the first work, to prepare a competing compilation, there would be no copyright infringement.

63 . 2 A. 886 (Conn. 1885).

64 . Id. at 890.

65 . Nebraska Irrigation v. Kock, 523 N.W.2d 676, 679 (Neb. 1994).

66 . See 18 U.S.C. § 711 (1995) (prohibiting private use of "Smokey the Bear"); 19 Op. Atty. Gen. 361 (1889) (United States appropriated figure of eagle with letters "U.S." under it, and may prevent private manufacturers from using it); cf. Vuitton et Fils S.A. v. J. Young Enterprises, 644 F.2d 769, 775 (9th Cir. 1981) (national insignia unprotectable); Geo. Washington Mint, Inc. v. Washington Mint, Inc., 349 F. Supp. 255, 262 (S.D.N.Y. 1972) (trademark of doubtful validity because might mislead customers into thinking they were doing business with government); In re Application of Gorham Mfg. Co., 41 App. D.C. 263 (1913) (affirming denial of registration of mark that looked like official seal of British government agency).

67 . Turner Broadcasting Sys. v. FCC, 114 S. Ct. 2445, 2469 (1994) (recognizing relationship between access to information and the First Amendment).

68 . 766 F.2d 728 (2d Cir. 1985).

69 . Id.

70 . Id.

71 . Id.

72 . Id. at 735.

73 . Id. at 735-36. Legi-tech stipulated that it would be willing to pay a higher price than the general public, and the court speculated that this might encompass a price that would reflect lost revenue to LRS.

74 . Los Angeles News Service v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992).

75 . 973 F.2d at 795. See also Twin Peaks Prods. v. Publications Int'l, 996 F.2d 1366, 1378 (2d Cir. 1993) ("except perhaps in an extraordinary case, ‘the fair use doctrine encompasses all claims of First Amendment in the copyright field,'" citing numerous cases).

76 . Consumers are the primary intended beneficiaries of the antitrust laws. Thus, consumers are more likely than competitors to have standing to litigate violations of the Sherman Act.

77 . 15 U.S.C. § 2 (1988).

78 . 15 U.S.C. § 1 (1988) prohibits combinations or conspiracies that restrain trade, thus focusing on contracts that fix prices or limit output.

79 . Except for per se violations of § 1, conduct potentially violating the Sherman Act is judged under a "rule of reason" analysis, which allows weighing the anticompetitive effect against procompetitive effect. Anti-competitive effect is judged with respect to a particular market. Eastman Kodak Co. v. Image Technical Serv., Inc., 504 U.S. 451, 483 (1992) (remanding as to whether manufacturer unlawfully tied sale of service to sale of parts for line of its micrographic equipment).

80 . Competitive effect in a defined market is essential for determining whether § 2 has been violated because one cannot determine if monopoly exists except relative to a particular market. Market definition is less central, but still important to § 1 analysis.

81 . See Federal Trade Comm'n v. Hospital Bd. of Directors, 38 F.3d 1184 (11th Cir. 1984) (state action requirement shielded purchase by county hospital board of private hospital because powers granted to political subdivision by state contemplated anti-competitive affect); Continental Bus Sys. v. City of Dallas, 386 F. Supp. 359, 363 (N.D. Tex. 1974) (state action doctrine prevented city granted exclusivity to bus lines serving airport from giving rise to antitrust liability).

82 . See Hoover v. Ronwin, 466 U.S. 558 (1984); Town of Hallie v. City of Eau Claire, 471 U.S. 34 (1985); Southern Motor Carriers Rate Conference v. United States, 471 U.S. 48 (1985); Thomas M. Jorde, Antitrust and the New State Action Doctrine: A Return to Deferential Economic Federalism, 75 CALIF. L. REV. 227, 228 (1987).

83 . Jorde, supra note 82, at 242 (citing Hallie, 471 U.S. at 42).

84 . Id. (citing Bolder, 455 U.S. 40; Hallie, 471 U.S. at 43).

85 . Id. at 245 (discussing Hallie, 471 U.S. at 46 & n.10).

86 . Id. (discussing SMC, 471 U.S. at 51, 61 n.23 & 66).

87 . One respected commentator proposed a limitation on the expansive "state action" immunity: that proprietary activities of municipal governments--;"public activities that compete directly with private firms in the open market and that differ from them only in stockholder identity"--;might be subject to greater antitrust scrutiny. Philip Areeda, Antitrust Immunity for State Action After Lafayette, 95 HARV. L. REV. 435, 443 (1981) (suggesting that waste disposal, water service, municipal transport, and public parks probably should not be included in the proprietary category and that mere regulation of zoning, cable television, and other public franchises would not be proprietary). However, Professor Areeda expressed concern that drawing the distinction between proprietary and nonproprietary activities always has proven troublesome.

88 . Bray v. Alexandria Women's Health Clinic, 113 S.Ct. 753, 777 (1993) (Souter, J., concurring in part and dissenting in part, noting that civil rights conspiracy claim could be evaluated similarly under substantive due process or equal protection tests). But see Nollan v. California Coastal Comm'n, 483 U.S. 825, 835 n.3 (1987) (questioning whether equal protection and substantive due process standards are the same in property taking cases).

89 . See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987) (state sales tax targeting general interest magazines, while exempting other publications, violated First Amendment rights).

90 . Thus, state monopolies on public information could be vulnerable to attack under 42 U.S.C. § 1983, and 42 U.S.C. § 1985(3) when they are established at the state and local level, and to challenges as constitutional torts when they are established at the federal level.

91. See 44 U.S.C. § 3506(d)(4) (user fees shall not exceed cost of dissemination).

92 . Microeconomic theory says that competition will force prices to a level close to marginal cost. Edwin Mansfield, MICROECONOMICS: THEORY AND APPLICATIONS 241 (2d ed. 1975) ("at the equilibrium price, price will equal marginal cost for all firms that choose to produce, rather than shut down their plants.").

93 . This natural monopoly does not mean that private sector entities are prohibited from collecting the information; it just means that it would not pay for them to do so.

94 . See Lotus Corp. v. Borland Corp., 49 F.3d 807 (1st Cir. 1995) (copyright extends to computer programs but not to data structures used to achieve compatibility between products).

95 . An interesting but speculative possibility is that certain "look and feel" aspects of computer products might be entitled to trade dress protection. See Two Pesos v. Taco Cabana, 112 S. Ct. 2753, 2757 (1992); Lauren S. Kellner, Computer User Interfaces: Trade Dress Protection for "Look and Feel," 84 TRADEMARK RPTR. 337 (1994); Matthew E. Watson, Trade Dress Theory and the Software Graphic User Interface: Sorting Through the Gooey Mess, 34 JURIMETRICS J. 251 (1994).