I thought this group would be interested in the content of the following
excerpt from the electronic newsletter of the IIA:
Lisa Holzhausen
<zzholz[_at_]acc.wuacc.edu>
[8]
COMPILATION COPYRIGHT AT THE SUPREME COURT:
ROUND 2 IN 1994
by Jim Schatz, Chair, IIA Proprietary Rights Committee
and Marla A. Hoehn, Heins, Schatz & Paquin
Ever since the U.S. Supreme Court decided the _Feist
Publications_ case in 1991, information companies have been
waiting for clearer signals from the courts about the scope and
strength of copyright in compilations, including directories,
collections of public domain materials, and factual databases.
Now, cases on yellow pages directories, baseball pitching
statistics forms, and personal organizers have found their way
through the judicial system, and offer the high court a change to
clarify its _Feist_ ruling.
_Bellsouth Advertising & Publishing Corp v. Donnelley Info. Publishing, Inc._, 999 F.2d 1436 (11th Cir. 1993), _petition for cert._ filed (No. 93-862; Nov. 30, 1993) is a yellow pages copyright case. In developing its own directory, defendant used certain information in plaintiff's directory, including the name, address, telephone number, business type and unit of advertising of each of plaintiff's subscribers. In September, the full Eleventh Circuit Court of Appeals (based in Atlanta) held that this did not amount to copyright infringement because no original elements of selection, coordination, or arrangement of the first directory were copied. The court concluded that plaintiff's grouping of individual listings under appropriate headings was not "original." Although finding that defendant actually took a "substantial" amount of information from plaintiff's directory, the Court nevertheless decided that similarities in headings between the parties' directories was due more to functional considerations and standard industry practice than to the fact that defendant copied plaintiff's headings.
A strong dissenting opinion argued that plaintiff's independent selection of headings for its directory, its assignment of listings to the various headings, and its selection of businesses to include in the directory were acts of originality warranting copyright protection. The dissent noted that the defendant's subject headings were based on the plaintiff's, and concluded that the second yellow pages directory was "substantially similar" in arrangement to the first one, including the repetition of telltale errors.
In _Kregos v. Associated Press_, 3 F.3rd 656 (2nd Cir. 1993), _petition for cert. filed_ (No. 93-863; Nov. 30, 1993), the Second Circuit Court of Appeals in New York considered whether the defendant violated the plaintiff's copyright in a form presenting statistics on baseball pitchers. Ultimately, the court held that the plaintiff was entitled to copyrightÔ infringement, because four of the ten statistical categories used in the defendant's form differed from those in the plaintiff's form.
The Ninth Circuit Court of Appeals in San Francisco reached a different result in _Harper House, Inc. v. Thomas Nelson, Inc._, 1993 WL 346546 (9th Cir. Sept. 10, 1993), a case involving competing personal organizers. The court concluded that plaintiff's organizers were entitled to only limited copyright protection, they consisted largely of uncopyrightable elements such as blank forms. However, because defendant's organizers contained 63 out of 76 sticker label headings contained in plaintiff's organizers, and because of other close similarities, the court found sufficient evidence to show "bodily appropriation" of the selection, coordination and arrangement of plaintiff's organizers, even though there were also differences in the selection or arrangement of sections.
As it happens, all three of these decisions were issued in early September, and parties in all three cases have asked the U.S. Supreme Court for a ruling. The Supreme Court hears only a small fraction of cases presented to it, and generally decides only one or two copyright cases each year. However, the fact that three different courts of appeal have applied the _Feist_ decision differently could help persuade the Supreme Court to consider these cases, in order to resolve apparent inconsistencies. The Court will probably decide this spring whether to consider any of the cases; if it agrees to do so, a final decision would probably come by mid-1995. IIA will consider filing a friend of the court brief if the Supreme Court agrees to hear any of these cases.
On January 24, 1994, the Supreme Court denied the petition for certiorari in the BAPCO case. Also, the press has reported a pending settlement of the Harper House case. It appears, therefore, that the remaining chance for the Supreme Court to clarify its Feist decision rests with the Kregos case. IIA will monitor these cases for impact on the interests of information companies.
President of the IIA: Kenneth B. Allen
Editor of Information Policy Online: Steven J. Metalitz, IIA
Vice President and General Counsel
Consulting Editor: J. Timothy Sprehe, Sprehe Information
Management Associates
For messages to IIA-IPO: <iia.ipo[_at_]his.com>
Voice: (202) 639-8262. Fax: (202) 638-4403.
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