I've combined two of Carl's responses here to try to avoid multiple threads. In a message dated 7/9/97 8:04:25 PM, Carl Oppedahl skewered large parts of my post (always a pleasure!) on NSI's database copyright claim:
(me)
> > Hm, let's do the straightforward copyright analysis. Did NSI create
> > the database? If they are the compiler of data, and the database is
> > not too derivative of other works (.com is far and away the biggest
> > and they currently control that, so I would think that any blocks of
> > data coming from other registries would be too de minimis to present
> > an obstacle here), then they are presumptively an owner of a
> > copyrightable work, because a database is copyrightable subject matter.
(Carl)
> Sorry, but it appears to me that NSI fails on this first, initial inquiry
> of the straightforward copyright analysis. NSI did not create the Whois
> or root server databases. The creators are the domain name owners. For
> example, let's look at the entry in that database for *your email address*.
> ...
> Virtually everything in this record was authored by someone at America
> Online. The only things that were not authored by America Online are the
> legends such as "record created on". Those legends are purely functional
> and in any event, a successor to NSI could run COM without having to copy
> the legends.
>
> Oh, well, there are the "handles" such as "DBO3". That handle simply means
> that Mr. O'Donnell is the third person with the initials DBO to be entered
> into the "person" part of the database. Did NSI author that? No, Mr.
> O'Donnell's parents authored that. DBO3 is at best a derivative work based
> on a work of authorship of Mr. O'Donnell's parents. JB4302 means that Joe
> Barrett was the 4302nd person with the initials JB to be entered into the
> database. Not much originality on NSI's part there, once again the author
> seems to be someone's parents. NSI hasn't been around long enough to have
> played a part in Mr. Barrett's naming.
>
> It is a straightforward matter to repeat the process for each record of the
> database, and in each case there is virtually nothing authored by NSI, only
> stuff authored by the various domain name owners.
Let's not confuse authoring information in individual "records" in a database, with authoring "the database," which is a compilation of such records. I am saying that the compilation is the basis of the NSI copyright claim.
And actually, I netpick with Carl that the domain name owners (DNO's for short) "authored" most of their information in the WHOIS database, and I think Carl's "handle" example proves my point. I didn't author my street address. Big real estate developments may deliberately choose their street name and number (1 Coca Cola Plaza), but most businesses and individuals just inherit whatever's there.
But this begs the question. How is NSI any different from Experian? Experian didn't author my mother's maiden name and my social security number, but it can certainly compile a protectable database of factual information about me. Carl, are you making a "thin or none copyright" type of argument here, on compilations of data in general?
[snip]
> The domain name owner's IP address appears nowhere in the NSI-administered
> database. The IP addresses that appear are the IP addresses of the domain
> name servers that are promised to provide the domain name owner's IP
> address.
A salient fact I did not know. Let's pick one database and stick with it, just for clarity: I propose we talk about the DND, and not the WHOIS (or are they the same?). I was assuming the DND was a simple one-to-one correspondence type lookup table of "XXXX.COM" = IP number, but if I understand Caro correctly, is actually the "IP number" of the server that holds the IP number that corresponds to the name. Any experts?
> But more importantly, how is the information in a Whois record
> distinguishable from telephone book information? Maybe you could
> explain your "nowhere near the same" distinction a bit more.
OK, "nowhere near the same" was too strong. Name and address fields, exactly similar. Now, this is really netpicking, but: phone numbers are by and large assigned by the phone company, not requested by the telephone customer, unlike a domain name (800 numbers are different fish). We could talk about the phone company "authoring" each sequence of numbers, but as I said above it's not relevant. Does the phone company author the whole set of information, as a compilation? I'm talking about the compilation of the information, not the individual fields and their values.
If the DND only contains domain names and IP numbers, in two fields, and it is "the set of all such things, in alpha"--then this is looking to me a lot more like a Feist case. If it contains all the WHOIS-type information fields and values, and if there are addresses out there that could be included, that aren't recognized by some servers but are by others (isn't this the .WEB controversy?), then the DND is a subset, involves editorial choice by NSI, and that moves it down the continuum away from being a pure Feist case.
> In what way does NSI decide what can and can't be in the Whois database?
> Are you saying NSI could, at a moment's notice, delete the America Online
> entry from its database? Is that what makes NSI's case more like the DJ
> case?
> ...
> The database existed *before* NSI assumed its five-year responsibility;
> NSI did not originate the database.
NSI exercises the discretion to deny registration to some domain names that are not already taken, from what I understand. Remember "ADULTSRUS.COM"? This looks a lot like editorial control over inclusion in a compilation to me. With respect to the fact that NSI inherited it, the size of the DND has ballooned in volume in 24 months, enough so that my guess is that any pre-existing portion of it from 5 years ago is de minimis enough to flunk the "substantial similarity" and "derivative work" tests in comparison to the DND today. I would argue that that kernel might be public domain, because of the history of the Internet.
> So much for copyright rights.
I don't think authorship/copyrightability can be dismissed so easily, unless all of database copyright protection can be as easily dismissed. What, after Feist, NSI could restrict others from using, is the big question to me--so I agree that protection is thin, but not none (and now I'm back from "left field" to "straightforward").
Carol Shepherd
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Carol Ruth Shepherd arborlaw[_at_]aol.com
(Go Tigers! Go Mud Hens!)
320 S Main Box 8403
business, Ann Arbor MI 48107
technology, entertainment +1 313 668 4646 tel
and new media law +1 313 663 9361 fax
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Received on Thu Jul 10 1997 - 21:44:14 GMT
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