Re: Can you own the number 10.5% ?

On Mon, 1 Feb 1999, John R. Levine <johnl[_at_]iecc.com> wrote:
>
> Shortly after the book came out, his publisher received a letter from
> Ibbotson Associates, who he'd never heard of until that point, saying
> that the 10.5% number was theirs since they were the only people doing
> long-term analysis of market returns, that was a number they'd
> calculated, and he'd misappropriated their proprietary number. I don't
> know if they demanded a specific remedy or not.
>
> It may well be the case that Ibbotson was the original source of the
> number, but I can't see how they have any claim on it. They can't
> copyright it since it's a fact, and it's well established that you
> can't copyright facts. It's not a trade secret, since it's not
> secret, it's published all over the place.
>
> Am I missing something here?

Patent? Nah. Even assuming they have a patent on some sort of process for calculating market returns, the patent does not prevent publication of the number itself, nor how it can be used.

Trademark? Nah. It's being used not as an identifier of goods or services, but as a functional element (both by Ibbotson and the publisher).

Trade secret? Nah. Apparently this came from a publicly available source.

Misappropriation? Nah. This is outside the "hot news" exception.

Copyright? Not unless 102(b) was repealed when I wasn't looking.

The only thing I can think of that comes close to supporting their position is the Compaq v. Procom case, which was decided in a Texas district court in 1995. In that case, Compaq alleged infringement because Procom had copied 5 "threshold values" that were used to determine when a disk drive was likely to fail, and prevailed. Procom appealed, and the case was settled while the appeal was pending.

I regard the Compaq v. Procom case as wrongly decided, anyway, but even there, there was a set of five values, not a single value, and while I can't argue with a straight face that this is a copyrighted compilation, I'm sure there are lawyers with better poker faces than I, who could.

-- 
Terry Carroll       | "Report of the Committee On Governmental Affairs,
Santa Clara, CA     | United States Senate, To Accompany S. 1364, An Act To
carroll[_at_]tjc.com     | Eliminate Unnecessary and Wasteful Federal Reports."
Modell delendus est |  - Title of U.S. Senate Report 105-187, May 11, 1998