Mark Lemley <MLEMLEY[_at_]mail.law.utexas.edu> wrote:
>
> Elizabeth Greenfield <egreenfi[_at_]counsel.com> wrote:
> >
> > BTW, did you know that alot of map makers will include phantom streets
> > (or other points, as relevant) to trap infringers?
> >
> **************
>
> Such invented streets clearly help prove copying by the accused
> infringer. But do they also constitute original expression, so that
> the copying of them might itself be infringement? My gut reaction
> might be yes, except that in Feist the defendant's copying of fake
> names and phone numbers didn't help the plaintiff.
I agree that invented streets help prove "copying" by helping to prove access. And, if the defendant has denied such copying, it is likely to undermine (bigtime) the defendant's credibility with judge and jury. But "copying" is not equivalent to copyright infringement. One also has to prove the taking of protected expression in more than a trivial amount.
In contrast to Mark's idea, I believe that the better analysis is that one should not treat invented streets as creative or original (even though they are just that!). Instead, I believe that copyright policy should be to treat as facts things which are put forward to the public as facts, whether they turn out to be facts or not. Copyright's goals are to allow the free use of facts and a second user ought not have to reproduce all of the basic research in order to verify that purported facts are facts. If we require that, then second users will never be able to rely on anything done by anyone else. In effect, that would give the first author a de facto monopoly on facts. I would apply this principle to historical "facts," map "facts," scientific "facts," etc.
Feist implicitly endorses this view but doesn't provide a rationale. I haven't looked for cases one way or the other on this issue.
Bob Kreiss
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:25 GMT