Cyber Patrol and collective works

There has been a lively discussion over the last week or two on cyberia-l about collective works and whether selection AND arrangement are required for copyright, or if one or the other is sufficient.

The context was as to a long list of censored URLs in a Cyberpatrol lawsuit. My position has been that there is probably sufficient original expression in the selection of URLs to support copyright protection for such. The result is that reproduction of the list, through whatever means, is thus potentially infringement (obviously ignoring such issues as fair use, licensing, etc.).

Mike Godwin has been leading the opposition in arguing that a collective work requires both selection AND arrangement, and thus that a different arrangement of the work would not be infringing. (I apologize to Mike, who is CC'd here, if I am misstating his position).

We apparently interpret Feist very differently, and have been quoting sections of it back and forth. I emphasized that both selection and arrangement were addressed separately (and then each dismissed in turn as lacking expression). Mike has pointed out that the Court utilized the conjunction ("and") when discussing the requirements of a collective work copyright. He also points to language in an article by Jane Ginsburg (see below) referenced in the opinion.

I am throwing this to cni-copyright to see if I can get a bit more light on the subject. To me, requiring both runs afoul of the definition of a collective work in 17 USC 101, and does not make logical sense - because if that is the law, then all one would have to do to get around such a copyright is change either the selection or the arrangement.

Any help here would be appreciated, and I apologize in advance to those who have seen this beaten to death in cyberia-l.

Mike Godwin wrote:
>
> I wrote:
> >
> > That's precisely what the Court says in Feist when it quotes Ginsburg:
> >
> > "'[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.'"
>
> Bruce responded by saying that perhaps the Court was saying something
> different from what I said it was saying.
>
> So I went and looked up Professor Jane Ginsburg's article on Lexis
> and got the full paragraph that the Court quotes with approval. Here
> it is:
>
> " Settling the appropriate subject matter of copyright protection
> will not resolve all questions, however. Even if a work is
> protectable, it remains necessary to determine what kind of copying
> will constitute infringement. The copyright law exempts from
> protection facts and ideas contained within a work. n11 Thus, in
> principle, no matter how much original authorship the work displays
> the facts and ideas it exposes are free for the taking; the copyright
> may cover only the facts and ideas as they are presented by
> theauthor. But the 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. As a result of the "fact/expression or
> idea/expression dichotomy," the scope of copyright protection in an
> informational work may be quite scanty. "
>
> From CREATION AND COMMERCIAL VALUE: COPYRIGHT PROTECTION OF WORKS OF
> INFORMATION, 90 Colum. L. Rev. 1865, 1990.
>
> I think the "quite scanty" sentence together with the "reshuffled"
> sentence underscores what I've been saying here; namely, that the
> protection of a list can be negated by "reshuffling."
>
> Ginsburg later wrote a followup article after she'd been cited so
> extensively in Feist. This paragraph may interest you and Austin,
> Bruce:
>
> '"Would the result [in Key Publications, Inc. v. Chinatown Today
> Publishing Enters., 945 F.2d 509, 511 (2d Cir. 1991)] be different if
> the second-comer first copied the prior compilation in its entirety,
> for example by downloading, and then extracted or reorganized
> information so that the end product were purged of the first-comer's
> original contributions? Under Feist, the final version would not be
> infringing, but what of the initial downloading? Establishment of the
> initial copy enabled the second-comer to create its reshuffled
> compilation, at far less expense and effort than that expended by the
> first compiler to gather the information. But if, as Justice O'Connor
> has declared, the Constitution favors this kind of free-riding, then
> first compilers may be obliged to tolerate copying predicate to
> reshuffling. At least, according to this view, any remedy accorded
> against initial copying should not preclude exploitation of the
> noninfringing fruits of the copying. Otherwise, reprimanding initial
> copying would prove a pretext to protecting sweat. Such protection
> clashes with Justice O'Connor's assertion that appropriation of sweat
> "is neither unfair nor unfortunate. It is the means by which
> copyright advances the progress of science and art."'
>
> From NO "SWEAT"? COPYRIGHT AND OTHER PROTECTION OF WORKS OF
> INFORMATION AFTER FEIST V. RURAL TELEPHONE, 92 Colum. L. Rev. 338,
> 1992.
>
> (Ginsburg notes in the second article that the Donnelly yellow-pages
> case relied on the duplication of Bell South's "format" --
> arrangement, not mere selection.)
>
> I recommend, Bruce, that you take a look at Ginsburg's two articles,
> which I think support my view.
>
> --Mike

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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2000 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
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Bruce E. Hayden                      bhayden[_at_]acm.org
Phoenix, Arizona                     bhayden[_at_]ieee.org
                                     bhayden[_at_]copatlaw.com