Re: Re: Copyright of lists

On Jan 15, 2007, at 10:30 PM, Webb, Jere wrote:

> I have always thought the "selection" part of "selection and
> arrangement" is a very interesting and troubling concept In the Feist
> case (which surprised most copyright lawyers by holding that the white
> pages of the phone book are not protectable), it didn't matter how
> much
> sweat of the brow the publisher put into "selecting" only real living
> individuals for the book. Take this example: you decide to publish a
> list of everyone in a city that has green hair. Many hours are made
> implementing this selection. Copyright protection? I don't think so.
> No creativity in the selection, although there might have been a
> lot of
> creativity in implementing the selection.

Yes, there is a modicum of creativity in the selection criteria -- green hair. So I think you get the very thin copyright here. In Feist there was almost no selectivity involved -- indeed, the company was required by an externality (monopoly grant) to produce the phone book and it included all customers. No selectivity at all.

> I had a case once where
> someone copied verbatim several hundred pages of my clients government
> application for a license and filed it as a competing application.
> The
> application consisted mainly of maps that had been prepared from
> government (i.e. public domain) maps "selecting" certain features
> relevant to the license application. Copyright protection? I decided
> this was a close call and found the cases confusing.

Map cases are confusing. But if you select only certain features and there is some originality in the selection, you get the copyright. Maps, though, are special cases.

> Another example:
> what if through sheer creative genius someone comes up with an
> algorithm
> to select from a database list a certain subset of data of interest to
> some particular group or industry. The result is then presented as an
> alphabetical list? Copyright protection? I'm not sure.

Selection gets copyright protection, not alphabetizing. If there is no creativity or originality in the selection criteria, then no protection. But some tiny amount of creativity or originality goes into defining the group or industry of interest - who to include and who to exclude. You can't protect the facts, but you can protect against exact copying, probably. But certainly the argument against is strong too.

> What if I go
> thru my college yearbook and "select" everyone in my class by use
> of my
> amazing powers of recognition and then publish them in an alphetical
> list. Copyright protection? I don't think so.

You didn't select anything if you select everything. Nothing creative there.

> So what would be a
> protectible "selection" that results in an alphabetized list being
> protectible? I cant think of an example.

Yellow pages have been given protection. A list of law cases dealing only with escaped wild animals would get protection. But it is only the exact list that gets protected from reproduction. Anyone else could take that idea and make her or his own list.

These are, of course, troublesome cases at the edge of the idea/ expression dichotomy and at the edge of originality. And you get such thin protection that the suit to stop the copying may not be worth the trouble.

If I create a list of "my favorite, helpful IP websites," I get a copyright in it, surely. But, the copyright is awfully thin. See http://iipsj.org/IIPSJResources/IIPSJResourcesNDX.htm (btw, it has not been updated for a long time, so I expect some of the links are broken and many good sites are not included . . . a springtime project). Now, I did not arrange the list alphabetically, but even if I did, it would still get protection because of the selection.

> Can anyone cite a relevant
> case? What if I come up with an incredibly creative parts numbering
> system for parts and I create a list of the parts by their numbers
> assigned? Protectible? No according to one court which observed that
> "clasifications schemes can in principle be creative enough to satisfy
> the creativity requirement for copyright protection" but that in the
> case before the court "all creative aspects of the classification are
> just that: ideas". The court said that the merger doctrine and the
> originality doctrine kill copyright protection for this sort of thing
> because "For almost all types of creativity claimed [by the plaintiff}
> there is only one reasonable way to expess the underlying idea". This
> latter point would doom many if not most creative selection cases.

Well, a parts list isn't creative by selection criteria, is it. It is all parts. And the number that is the result of an application of an idea is indeed merged. But that isn't the same thing, is it?

The subjective criteria -- my favorite websites -- is creative and there can be no merger. Anyone else can come along and create his or her own set of websites using the same idea -- "my favorite websites" -- the two lists would not be likely to be identical and there is no merger of idea and resulting list or product.

Steve

>
> Jere
>
> Jere M. Webb
> Stoel Rives LLP
> Standard Insurance Building
> 900 SW Fifth Ave., Suite 2600
> Portland, OR 97204
>
> Phone: 503-294-9460
> Fax: 503-220-2480
> Email: jmwebb[_at_]stoel.com
>
> Secretary: Nancy Campbell
> Phone: 503-294-9316
> Email: nacampbell[_at_]stoel.com
>
> www.stoel.com
>
>
>
>
> -----Original Message-----
> From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of jfnbl[_at_]earthlink.com
> Sent: Friday, January 12, 2007 03:50 PM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Subject: [CNI-(C)] Re: Copyright of lists
>
> IBD is entitled to "very thin" copyright protection for the selection
> and arrangement of its list of industry groups. In this case, the
> arrangement -- alphabetical -- is unoriginal, almost unavoidable, and
> undoubtedly unprotectible. The selection is another matter. The range
> of available choices for a taxonomy of industry groups is vast if not
> limitless. You say that "some of [your] names are similar but not the
> same," and "in a few cases [your] names and their names are the
> same." To the extent your example is representative -- 3 of 4
> identical, and the fourth a slight variation -- you are close to the
> virtually identical reproduction (right down to the use of a matching
> abbreviation, Bldg) that would be required to establish infringement
> of IBD's very thin copyright. You won't find it in the statute or the
> caselaw, but in the real world this kind of subjective judgment is
> often based on unstated equitable considerations. It strikes me that
> it would be impossible to have arrived at your taxonomy without
> having copied theirs -- for commercial advantage, with strategic
> alterations to avoid a charge of slavish copying. In other words, one
> gets the sense that you are trading on the good will associated with
> their industry group listing. If you are selling subscriptions to a
> service that substitutes for theirs at half the price, it calls to
> mind the knock-offs of Gucci purses sold by street vendors. No
> offense intended. Maybe your product is superior. But it smells like
> a knock-off. The "right" legal claim would be unfair competition,
> except that the Copyright Act probably preempts the unfair
> competition claim. If the Copyright Act's preemption provision
> deprives IBD of what would otherwise be a good state law claim, then
> the court is going to be inclined to find a remedy in the Copyright
> Act.
>
> Disclaimer: I'm not your lawyer, and you need one.
>
> John Noble
>
> At 4:05 PM -0500 9/1/07, HGS wrote:
>> My question is about copyright law regarding a list of titles.
>>
>> I am a small business owner. I use a list of industry group titles in
> my
>> business to classify stock market companies. The name of my industry
> group
>> list is "Industry Monitors 200". The name is not trademarked or
>> copyrighted. Here is a partial example of my list:
>>
>> Industry Monitors 200
>> Banking-Foreign
>> Banking-Midwest
>> Banking-West
>> Bldg-Hand Tools
>>
>> My Industry Monitors list has a total of 192 titles.
>>
>> Another company William O'Neil + Co. 197 Industry Groups (tm) also
>> has
> a
>> list that they call the IBD 197 Industry Groups. IBD is "Investor's
> Business
>> Daily" a very large newspaper for investors.
>>
>> Here is a partial example of their list:
>>
>> IBD 197 Industry Groups
>> Banks-Foreign
>> Banks-Midwest
>> Banks-West/Southwest
>> Bldg-Hand Tools
>>
>> Some of my names are similar but not the same. In a few cases my
>> names
> and
>> their names are the same. They have 197 industry groups, I have 192
>> industry groups.
>>
>> Is each name in their list copyrighted such that if I have the exact
> same
>> name in my list I will be violating their copyright? Does a list
>> that
> looks
>> similar come under copyright protection?
>>
>> They have recently contacted me with this statement:
>>
>> The "HGSI Industry Group" list impermissibly copies from IBD's
> copyrighted
>> industry group list and violates IBD copyright" (HGSI is the acronym
> used
>> for my product and website HighGrowthStock Investor)
>>
>> Thank you for any assistance.
>>
>> Regards,
>> George Roberts
>>
>>
>>
>>
>>
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-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar[_at_]gmail.com
Washington, DC  20008	                         http://iipsj.com/SDJ/

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