On 5/29/97, Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> Dan Agin <specpress[_at_]earthlink.net> wrote:
> >
> > It seems to me that if there are no proprietary rights resulting
> > from collecting names for a telephone book, there are also no such
> > rights for collecting news (facts). Which means a modern court, to
> > be consistent in the face of the Feist v. Rural decision, will
> > probably overturn INS v. AP.
>
> There are a few things wrong with this.
>
> (1) The Feist court did not say that no proprietary rights
> result from collecting names for a telephone book; they said only
> that in the Feist case the selection and arrangement of those names
> was not sufficiently original to meet the threshold necessary for
> copyright protection. It is not hard to imagine circumstances under
> which the same data, differently arranged, might well give rise to
> copyright protection (such as in a more creative "Yellow Pages" type
> of directory).
There are a few things wrong with this, too. :)
First, a copyright in the selection and arrangement does not give a copyright in the underlying data -- so I should still be able to extract the contents of the "creative" telephone book so long as I don't take the original "creative" arrangement.
Second, I think the point of Feist is that there are only a couple of useful ways to arrange telephone book data -- so a type of "selection and arrangement merger" occurs. If you get too creative with the selection and arrangement of your telephone book, it becomes useless.
> (2) Feist dealt with copyright; INS dealt with misappropriation.
Feist dealt with federal IP policy in compiled facts. It happened to access it via the copyright statute, but the subject matter dealt with was exactly the same as that in INS. INS is dead. The Second Circuit just hasn't figured it out yet.
> (3) Feist dealt with protection for the selection and arrangement
> of unprotected facts; INS's "hot news" misappropriation theory
> defined circumstances giving rise to protection (albeit short-term)
> for the facts themselves.
This is a distinction without a difference. Both dealt with the "sweat of the brow" in compiling facts. Feist states very clearly that theory is constitutionally unsound.
Put it this way: if I produce a directory of "hot facts" -- say, something like Yahoo or Lycos that updates rapidly changing URLs -- do you think they are protectable under INS? Or unprotectable under Feist?
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