Class 4 Copyright, Autumn, 2016 - PowerPoint Presentation

Class 4 Copyright,  Autumn, 2016
Class 4 Copyright,  Autumn, 2016

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Facts and Compilations Randal C Picker James Parker Hall Distinguished Service Professor of Law Ludwig amp Hilde Wolfe Teaching Scholar The Law School The University of Chicago October 3 2016 ID: 682204 Download Presentation

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Class 4Copyright Autumn 2019Facts and Compilations

Randal C. Picker

James Parker Hall Distinguished Service Professor of Law

The Law School

The University of ChicagoSlide2

November 26, 2019

2

Feist

Rural Telephone Service

the local phone company in northwest Kansas

Provide service, assign phone numbers, get all of the info as a byproduct of those activities

Required by law to issue phone bookSlide3

November 26, 2019

3

Feist

Distribute phone books: free to consumers, charge companies to be in Yellow Pages

Feist Publications

Entrant into area-wide phone book market

Struck deal with 10 of 11 to license listings; Rural refused

Feist got names from phone book; sought to verify listings; did most not allSlide4

November 26, 2019

4

Legal “Facts” in

Feist

“Two Well-Established Propositions”

Facts are not copyrightable

Compilations of facts are copyrightableSlide5

November 26, 2019

5

Copyright’s Incentives

Do we need to give Rural a copyright in the phone listings to incentive it to issue the phone book?Slide6

November 26, 2019

6

Facts and Copyright

Single Facts

Start with Sec. 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.Slide7

November 26, 2019

7

Facts as Discoveries

Putting the language to one side

Authors as discovering facts, not creating them

Facts as existing independent of the author, hence no originationSlide8

November 26, 20198

Title 17

Section 103Slide9

November 26, 20199

Title 17

House Report on Section 103Slide10

November 26, 201910

Title 17

Covers All Uses of Preexisting Material or DataSlide11

November 26, 2019

11

Groups of Facts: Compilations

The definition of compilation in Sec. 101:

A “compilation” is a work formed by the collection and assembling of

preexisting materials or of data

that are

selected, coordinated, or arranged

in such a way that the resulting work as a whole

constitutes an original work of authorship

.Slide12

November 26, 2019

12

What is Copyrightable in a Compilation?

S/C/A

Selection

Coordination

ArrangementSlide13

November 26, 2019

13

The Heart of Copyright

Hard work (“sweat of the brow”) v. originality

Feist

finds originality to be a constitutional requirement for copyright protection by Congress

Raises difficult issues about the ability of Congress to protect merely hard work creations, even under, say, the Commerce ClauseSlide14

Feist and Compilation OriginalitySays the Court:“As discussed earlier, however, the originality requirement is not particularly stringent. A compiler may settle upon a selection or arrangement that others have used; novelty is not required. Originality requires only that the author make the selection or arrangement

independently

November 26, 2019

14Slide15

Feist and Compilation Originality“(i.e., without copying that selection or arrangement from another work), and that it display some minimal level of creativity.

Presumably,

the vast majority of compilations will pass this test, but not all will. There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”November 26, 201915Slide16

Facts and CopyrightTwo Paths to PursueI want to copyright a “fact” or something fact-like. Can I do that?What compilations will suffice?

November 26, 2019

16Slide17

Understanding “Facts”Three SituationsMarket InformationThe SAT

The “real” story of John Dillinger

November 26, 2019

17Slide18

3.95Is the number 3.95 copyrightable?

November 26, 2019

18Slide19

Price Determination on ExchangesHypo 1Company, call it the New York Mercantile Exchange, runs a market on which contracts are traded

It is required pursuant to CFTC regulations (see 17 CFR 16.01) to determine daily settlement prices for contracts

November 26, 2019

19

TTYN (1 of 6)Slide20

Price Determination on ExchangesDepending on trading volume, this is not a purely mechanical exercise and so, at least in some circumstances, Company uses its independent judgment in recording the closing price

Are those prices copyrightable? Does Company author those prices or does it just discover prices?

November 26, 2019

20

TTYN (2 of 6)Slide21

Market SurveysHypo 2Bankco surveys banks across the country to calculate an average interest rate for particular terms

Second firm, call it Costco, quotes one of those rates in its own ads

Copyright infringement?

November 26, 201921

TTYN (3 of 6)Slide22

Market SurveysDoes it matter how Bankco does the survey?

How it calculates the average?

November 26, 2019

22

TTYN (4 of 6)Slide23

Market PredictionsHypo 3Corp publishes a guide to used car prices. Although Corp surveys actual market transactions, it doesn’t report mere averages but instead offers forecasts (predictions) of what prices will be like over the next six weeks

November 26, 2019

23

TTYN (5 of 6)Slide24

Market Predictions“We predict that a 2008 Red Honda Accord with 70,000 miles on it will sell for $19,500 over the 6 weeks.”Copyrightable? Does it matter if the predictions match exactly the market averages calculated from market surveys?

November 26, 2019

24

TTYN (6 of 6)Slide25

Answers1. Market Exchange PriceNo2. Interest Rate Average

No

3. Used Car Value Forecast

YesNovember 26, 201925Slide26

Cases: Price Determination on ExchangesNew York Mercantile Exchange Inc. v. IntercontinentalExchange, Inc.,

497 F.3d 109

(2

nd Cir. 2007)“The question then, is one of characterization: does the Committee create the settlement prices, or is it more accurate to view the Committee’s task as like that of a census taker, copying the market's valuation of futures contracts?”November 26, 201926Slide27

Cases: Price Determination on Exchanges“While the line between creation and discovery is often clear-cut, we recognize that it is a difficult line to draw in this case.

For reasons we explain below, we believe there is a strong argument that, like the census taker, NYMEX does not

‘author’

the settlement prices as the term is used in copyright law.”November 26, 201927Slide28

Cases: Market SurveysBanxcorp v. Costco Wholesale Corp., 978 F.Supp.2d 280

(SDNY 2013)

“… [T]he

Court determines that, even drawing all reasonable inferences from the evidence in Plaintiff's favor, the averages are unprotectable because they are uncopyrightable facts, because they are too short to be copyrighted, and because the so-called merger doctrine … bars copyright protection.”November 26, 201928Slide29

Cases: Market PredictionsCCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc., 44 F.3d 61 (2

nd

Cir. 1994)

“The district court was simply mistaken in its conclusion that the Red Book valuations were, like the telephone numbers in Feist, pre-existing facts that had merely been discovered by the Red Book editors.”November 26, 201929Slide30

Cases: Market Predictions“To the contrary, Maclean’s evidence demonstrated without rebuttal that its valuations were neither reports of historical prices nor mechanical derivations of historical prices or other data. Rather, they represented predictions by the Red Book editors of future prices estimated to cover specified geographic regions

. …

The valuations themselves are original creations of Maclean

.”November 26, 201930Slide31

Cases: Market Predictions“The balancing of interests … leads to the conclusion that we should reject

CCC’s

argument seeking the benefit of the merger

doctrine. Because the ideas contained in the Red Book are of the weaker, suggestion-opinion category, a withholding of the merger doctrine would not seriously impair the policy of the copyright law that seeks to preserve free public access to ideas.”November 26, 201931Slide32

November 26, 2019

32

Cultural Facts?

Question 1

The scar on Harry Potter’s forehead is in the shape of:

(a) a lightning bolt

(b) a Nimbus 2000

(c) an owl

(d

) the copyright symbol

©Slide33

Cases: Cultural Facts (The Seinfeld Aptitude Test)Castle Rock Entertainment v. Carol Publishing Group, Inc., 150 F.3d 132

(2

nd

Cir. 1998)“We conclude that The SAT unlawfully copies from Seinfeld and that its copying does not constitute fair use and thus is an actionable infringement.”November 26, 201933Slide34

Cases: Cultural Facts… [E]ach SAT trivia question is based directly upon original protectable expression in

Seinfeld

. …

The SAT did not copy from Seinfeld unprotected facts, but, rather, creative expression.”November 26, 201934Slide35

November 26, 2019

35

The Fictional Dillinger

Hypo

Nash writes a novel setting forth an alternative fictional account of the notorious John Dillinger’s life

CBS makes TV episode of that

Nash alleges copyright infringement: does he win?Slide36

AnswerYes

November 26, 2019

36Slide37

November 26, 2019

37

Nash v. CBS (7

th

Cir. 1990)

Core Facts

Nash publishes books describing what he believes actually happened to John Dillinger

Claims this to be “fact;” “the truth”

CBS broadcasts an episode of

Simon and Simon

that incorporates some of Nash’s facts

Nash claims a copyright violation: does he win?Slide38

November 26, 2019

38

Answer

No

“The producers of

Simon and Simon

used Nash’s work as Nash has used others’: as a source of facts and ideas, to which they added their distinctive overlay. As the district court found, CBS did no more than § 102(b) permits. Because

The Dillinger Print

uses Nash’s analysis of history but none of his expression, the judgment is AFFIRMED.”Slide39

Experian (CA9 2018)Starting PointsStart with the database and the registrationMore on registration in just a second

As to the database

How should we classify it in copyright? What does Section 103 and Feist say about its copyrightability?

November 26, 201939Slide40

November 26, 201940

Title 17

Section 408 on RegistrationSlide41

November 26, 201941

Title 17

Section 408 on RegistrationSlide42

November 26, 201942

https://

www.copyright.gov/rulings-filings/review-board/index.html

Registration and the Copyright Office Review BoardSlide43

November 26, 201943

Experian

ConsumerViewSlide44

Finding the Compilation HereWhat was …SelectedCoordinated

Arranged

November 26, 2019

44Slide45

Sorting ExperianMy Bottom LineFinding compilation easy here; tons of selection being made re inclusion and exclusion

None of that in

Feist

(and Feist says most compilations will qualify for copyrightability)That of course gives no control over individual factsNovember 26, 201945Slide46

Sorting ExperianMy Bottom LineAnd focus on accuracy is a mistake; that is still just a determination of a fact and achieving accuracy is mainly SOTB (sweat of the brow)

November 26, 2019

46Slide47

Sorting ExperianMy Bottom LineUnderstanding the 80% analysisMay be fine on question of whether it is a copy but takes us right into derivative work question

Tricky line here will be between figuring out what is a derivative work and what is a legitimate use of individual facts

November 26, 2019

47Slide48

Sorting ExperianMy Bottom LineRaised in complaint; not in opinions; don’t know why

November 26, 2019

48

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