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 The PPT/PDF document "Class 4 Copyright, Autumn, 2016" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
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