Re: copyrighting of numbers

Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> Mark Lemley <MLEMLEY[_at_]mail.law.utexas.edu> wrote:
> >
> > This is the source of our disagreement, then. All courts that I am
> > aware of (including two decisions of the 7th Circuit) have held
> > that compilations are "works of authorship" within the scope of the
> > copyright clause, despite the fact that they are not "original." I
> > take it you disagree with this result, but that you would agree that
> > as to works within the scope of the clause, Commerce Clause
> > legislation wouldn't be possible. Right?
>
> I can't comment on whether I agree with those cases without reading
> them. I suspect that they were applying copyright law, in which case,
> the holding is likely to be as to the effect of the particular statute,
> not whether the works themselves were within the constitutional scope
> of the clause.
>

I'm not sure I understand this argument. In these cases, the court said that material was not original, and therefore not protected by statute, *but* still within the scope of the Copyright Clause so that 301 preemption might apply.

   From ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996):

   "The [trial court] judge thought that the data likewise are 'within    the subject matter of copyright' even if, after Feist, they are not    sufficiently original to be copyrighted. 908 F. Supp. at 656-57.    Baltimore Orioles, INc. v. MLBPA, 805 F.2d 663, 676 (7th Cir.

1. supports that conclusion, with which commentators agree. E.g. Goldstein [treatise]; Nimmer [treatise]; Patry [treatise]. One function of section 301(a) is to prevent states from giving special protection to works of authorship that Congress has decided should be in the public domain, which it can accomplish only if 'subject matter of copyright' includes all works of a type covered by sections 102 and 103, even if federal law does not afford protection to them."

Terry, is your argument that databases are covered by the statute, but *not* covered by the constitutional clause? If so, where is the constitutional authority for the statute?

Mark A. Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu
Note CHANGED office phone: 512/232-1342

Information on UT's Intellectual Property program: http://www.utexas.edu/law/acadaff/intelprop/

My publications list: http://www.law.utexas.edu/lemley/pubs.htm Received on Fri May 15 1998 - 22:23:56 GMT