On Tue, 5 Jan 1999, Carl Hartmann <hartmann[_at_]federal-litigation.com> wrote:
>
> Dr. Arnold Moore argues HyperLaw's side -- but let me ask this -- just
> as devil's advocate (no pun intended in taking West's stance)...
>
> What do the words "arrangement" and "selection" mean in a post-digital
> world? If I copy a smaller database into a "meta-collection" (a
> collection of databases) I no longer reflect your selection or your
> arrangement on my CD or in my database.
I think there is a difference between creating a new meta-collection which is simply a number of smaller collections gathered together and creating a collection which has a natural existence apart from the smaller collection (i.e. all Federal case law as opposed to all reported federal case law) even if the larger collection sources from the smaller collection (obviously not exclusively) and even if it includes information allowing others to access the smaller collection directly (like West page numbers).
Regardless with pagination, there is still a strong public interest argument against West simply because many courts require West references for citations in court. I am not really against West, I just think their case is weak.
> BUT... if I program in a search and ordering routine that allows,
> with the pressing of one button, viewing of the complete selection
> and arrangement that you used in your smaller compilation, what's the
> difference between this and infringement?
If HyperLaw don't actually reproduce (a substantial part of) the selection there can be no direct infringement. If the only use for that one button is to produce a copy of the selection and arrangement made by West then HyperLaw would be authorizing infringement by providing that button. If the button can actually be used for other purposes (i.e. those that do not reproduce the selection and arrangement) then you don't have authorizing and the only infringement occurs if someone actually uses the functionality for that purpose i.e. its not HyperLaw's problem how its customers use legitimate functionality.
> (In other words, what is the digital solution to providing
> cross-references to smaller collections, while at the same time
> not providing a sort of "instant ability to infringe"?
Its not a problem you need to solve, at least not for copyright purposes. If the digital solution for providing cross-references happens to also provide an easy way to reproduce the selection and arrangement (i.e. the record function combined with a TV channel selector on a VCR happens to also provide an easy way to illegally reproduce a TV broadcast) that's bad luck for West and they have to go after every individual infringer.
> I think it is to hobble the search/order capacity of the larger
> collection to make it as hard as it would be if you were doing it
> with scissors in a paper set.)
Why?
> Perhaps I'm defensive about this, but my original advice to HyperLaw
> is that they should allow this instant search/order. (This is why
> HyperLaw's product does not allow one to do this -- BTW.) In the end,
> I cannot believe that West really has any meaningful selection or
> arrangement in its reporters -- the selection is pretty much what a
> court says, and the arrangement, while it may have had a miniscule
> modicum of originality in the paper volumes, is destroyed when those
> volumes are smooshed together to form a final volume.
In Australia, the test for originality would be does the selection and arrangement originate from West? If it actually originates from the court then West can't claim ownership. My understanding was that the selection originates from both sides meaning that West may have a protectable interest. What the extent of that interest is looks hard to determine in any individual collection.
-- | Tim Arnold-Moore, Ph.D., LL.B., B.Sc. (Hons) | Postal address: Multimedia Database Systems, RMIT | GPO Box 2476V | Melbourne 3001 | AUSTRALIA | Tel: +61 3 9925 4116 | Fax: +61 3 9925 4098 | simul iustus et peccator <tja[_at_]mds.rmit.edu.au>Received on Tue Jan 12 1999 - 03:05:24 GMT
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