Re: Cyber Patrol and collective works

On Mon, Apr 03, 2000, Bruce E. Hayden <bhayden[_at_]ieee.org> wrote:
>
> 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

I am a little confused by the use of the phrase "a collective work requires both selection AND arrangement." I cannot imagine a collective work that didn't consist of both selection AND arrangement .... but I assume what is meant is that both the selection and the arrangement must be sufficiently original to be entitled to copyright. If that is so, I disagree. I vaguely recall (though don't have a cite) reading at least one case where the originality of selection and the originality of arrangement were analyzed separately. It seems to me that even if one of the two elements, selection or arrangement, were found insufficiently original to be protected by copyright, but the other element were held original, then the work would still be protected to that extent -- just as any work containing copyrightable elements is protected to the extent of those elements, despite the fact that it also contains other noncopyrightable elements.

To put it a different way, it is entirely possible to have copyright in the original arrangement of an unoriginal selection, or in an original selection albeit arranged unoriginally. The white pages are an unoriginal selection arranged unoriginally. The yellow pages, it seems to me, are an unoriginal selection (businesses with addresses and telephone numbers) arranged with originality (in categories and page layouts that are the original work of a yellow pages editor). An alphabetical list of every trademark lawyer in the USA who loves spaghetti westerns would be an original selection arranged unoriginally (because, as Feist noted, there is nothing original about alphabetical arrangement).

Finally, if it's possible to have copyright in a selection without an arrangement or vice versa, it is also possible to infringe the copyright in an original selection even though the arrangement is noncopyrightable -- and vice versa.

> Robert C. Cumbow
> Graham & Dunn, P.C.
> 1420 Fifth Avenue, 33rd Floor
> Seattle, Washington 98101-2390
> Phone: 206-340-9619
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> E-mail: rcumbow[_at_]grahamdunn.com
> Website: http://www.grahamdunn.com/
>

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