Re: copyrighting of numbers

On Thu, 30 Apr 1998, Paul Heald <heald[_at_]jd.lawsch.uga.edu> wrote:
>
> Thomas Workman <tworkman[_at_]erols.com> wrote:
> >
> > The MLS book is definitely protected by copyright, I would propose, in
> > that it required originality to organize and present the information
> > on each property displayed. I propose that it is more than a phone
> > book, which is not copyrightable under Feist. That may all change
> > soon, as there is legislation to allo w for the protection of
> > databases, or collections of information. If that legislation passes,
> > then phone books would again become protectable.
>
> You're assuming that the legislation is constitutional. In my
> opinion, and those of others, it almost certainly would not be. See
> Paul J. Heald, The Vices of Originality, 1991 Supreme Court Review
> 143, 168-75 (1991) (Congress cannot overrule Feist under the
> principle of Railway Executor's Ass'n v. Gibbons, 455 U.S. 457
> (1985)). Peter Jaszi agrees, see Jaszi, Goodbye to all That . . .,
> 29 Vand. J. of Trans'l L. 595, 603-605 (1996). We've had this full
> argument on this list before, so I'll not repeat it. If you want my,
> side read the above articles. Dan Burk would be happy to rebut if
> you ask him.

I don't want to repeat the arguments on the other side, but just to summarize the main two points:

1. Feist held that the phone books are not within the scope of the contitutional copyright clause, and so an attempt to protect them via copyright was not authorized by that clause. Protection under another clause, such as the commerce clause, would still be possible. The Railway Executor's Ass'n bankruptcy case are not contra. In those cases, the statutes held unauthorized by the Constitution were bankruptcy statutes, and were clearly within the scope of the applicable constitutional provision; they just didn't meet the constitutional requirement that the laws be uniform. This is a very different from the database situation -- under Feist, databases aren't within the scope of the copyright clause at all, and the copyright clause doesn't preempt protection under another constitutional clause.

In this sense, database protection is no different than trademark protection. Neither are authorized by the copyright clause, but because they're not within the scope of the clause, can be empowered by other clauses.

Feist is kind of a catch-22 here: The core holding of Feist, that a database is not within the scope of the copyright clause, is precisely what permits protection authorized by another clause.

2. If the U.S. is a signatory to a database protection treaty, under the treaty clause, Congress is empowered to enact legislation pursuant to the treaty under Holland v. Missouri and its progeny. This is another distinction from the bankruptcy case, where there was no treaty basis to support the passage of nonuniform bankruptcy laws.

All that aside, I don't personally favor database protection laws, and in particular, I don't favor the ones that have been proposed. But whether a proposed law is stupid is a different question from whether it is unconstitutional.

--
Terry Carroll       |    "'Reprehensible' is just a five-syllable
Santa Clara, CA     |    word for 'scumbag.'"
carroll[_at_]tjc.com     |               - U.S. Congressman
Modell delendus est |                 Christopher Cox (R-Cal.)