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Class 4Copyright, Spring, 2008
Facts and Compilations
Randal C. PickerLeffmann Professor of Commercial Law
The Law School
The University of Chicago
773.702.0864/[email protected] © 2005-08 Randal C. Picker. All Rights Reserved.
April 10, 2023 Copyright © 2005-08 Randal C. Picker 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 book
April 10, 2023 Copyright © 2005-08 Randal C. Picker 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 all
April 10, 2023 Copyright © 2005-08 Randal C. Picker 4
Legal “Facts” in Feist
“Two Well-Established Propositions” Facts are not copyrightable Compilations of facts are copyrightable
April 10, 2023 Copyright © 2005-08 Randal C. Picker 5
Copyright’s Incentives
Do we need to give Rural a copyright in the phone listings to incentive it to issue the phone book?
April 10, 2023 Copyright © 2005-08 Randal C. Picker 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.
April 10, 2023 Copyright © 2005-08 Randal C. Picker 7
35 USC 101
Inventions patentable Whoever invents or discovers any new and
useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
April 10, 2023 Copyright © 2005-08 Randal C. Picker 8
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 origination
April 10, 2023 Copyright © 2005-08 Randal C. Picker 9
Originality and the Constitution
The Congress shall have the Power . . . To promote the progress of science and the
useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
(Art. I, § 8, cl. 8)
April 10, 2023 Copyright © 2005-08 Randal C. Picker 10
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.
April 10, 2023 Copyright © 2005-08 Randal C. Picker 11
Groups of Facts: Compilations
Sec. 103(a) The subject matter of copyright as specified
by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
April 10, 2023 Copyright © 2005-08 Randal C. Picker 12
Groups of Facts: Compilations
Sec. 103(b) The copyright in a compilation or derivative
work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.
April 10, 2023 Copyright © 2005-08 Randal C. Picker 13
Groups of Facts: Compilations
The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
April 10, 2023 Copyright © 2005-08 Randal C. Picker 14
What is Copyrightable in a Compilation?
S/C/A Selection Coordination Arrangement
April 10, 2023 Copyright © 2005-08 Randal C. Picker 15
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 Clause
Understanding “Facts”
Two Examples The “real” story of John Dillinger The SAT
April 10, 2023 Copyright © 2005-08 Randal C. Picker 16
April 10, 2023 Copyright © 2005-08 Randal C. Picker 17
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?
Answer
April 10, 2023 Copyright © 2005-08 Randal C. Picker 18
April 10, 2023 Copyright © 2005-08 Randal C. Picker 19
Nash v. CBS (7th 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?
April 10, 2023 Copyright © 2005-08 Randal C. Picker 20
Answer
April 10, 2023 Copyright © 2005-08 Randal C. Picker 21
Cultural Facts?
The Seinfeld Aptitude Test: Level 1 To impress a woman, George passes
himself off as: (a) a gynecologist (b) a geologist (c) a marine biologist (d) a meterologist
April 10, 2023 Copyright © 2005-08 Randal C. Picker 22
Castle Rock Entertainment (2nd Cir. 1998)
Unprotectable facts under Feist? Instead, original expression? Says the Court
April 10, 2023 Copyright © 2005-07 Randal C. Picker 23
Legit and Illegitimate Use: Can’t Copy
April 10, 2023 Copyright © 2005-07 Randal C. Picker 24
Legit and Illegitimate Use: Can Use Ideas to Create New
Expressions
April 10, 2023 Copyright © 2005-07 Randal C. Picker 25
Merger: When Only One Expression of an Idea is
Possible
No Copyright in Original Expression
April 10, 2023 Copyright © 2005-07 Randal C. Picker 26
Merger
The Merger Doctrine “It has long been well-established that, in
order to protect the immunity of ideas from private ownership, when the expression is essential to the statement of the idea, the expression also will be unprotected, so as to insure free public access to discussion of the idea”
April 10, 2023 Copyright © 2005-07 Randal C. Picker 27
CCC v. Maclean
Core Facts M publishes The Red Book
Expert predictions of used-car prices over the next six weeks
8 times per year, three regional versions, plus Wisconsin version
April 10, 2023 Copyright © 2005-07 Randal C. Picker 28
CCC v. Maclean
CCC Services VINGuard Valuation Service
• Average of Red Book and Blue Book figures Computerized Valuation Service
• CCC’s independent figure• Average of Red and Blue• Red alone
Copyright infringement?
Two Things at Stake
The Single Number Generate by M “We predict that a 2002 Red Honda accord
with 70,000 miles on it will sell for $19,500 over the 8 weeks.”
The Compilation How does M select/coordinate/arrange
(SCA) the information?
April 10, 2023 Copyright © 2005-08 Randal C. Picker 29
April 10, 2023 Copyright © 2005-07 Randal C. Picker 30
Pure Data, All Data
Hypo Maclean collects data on actual car sales M publishes The Red Book consisting of
that data Chicago: 2002 Honda Accord, 45,000 miles,
fully-loaded, $22,500 Line by line
CCC copies it all: infringement?
April 10, 2023 Copyright © 2005-07 Randal C. Picker 31
Answer
April 10, 2023 Copyright © 2005-07 Randal C. Picker 32
Just Averages
Hypo Maclean collects data on actual car sales M publishes The Red Book consisting of
averages by car type All Chicago sales of 2002 Honda Accords,
$22,500 on average CCC copies the averages: infringement?
April 10, 2023 Copyright © 2005-07 Randal C. Picker 33
Answer
April 10, 2023 Copyright © 2005-07 Randal C. Picker 34
Average “Predictions”
Hypo M calculates averages by car type
All Chicago sales of 2002 Honda Accords, $22,500 on average
M publishes The Red Book consisting of predictions of future used car values
2002 Honda Accord in Chicago: $22,500
April 10, 2023 Copyright © 2005-07 Randal C. Picker 35
Average “Predictions”
M never releases raw data or averages but we learn from disgruntled employee how predictions are made
CCC copies the predictions: infringement?
April 10, 2023 Copyright © 2005-07 Randal C. Picker 36
Answer
April 10, 2023 Copyright © 2005-07 Randal C. Picker 37
Expert Predictions
Hypo M calculates averages by car type
All Chicago sales of 2002 Honda Accords, $22,500 on average
M publishes The Red Book consisting of predictions of future used car values
Take average, $22,500; study, think, opine: $23,522
April 10, 2023 Copyright © 2005-07 Randal C. Picker 38
Expert Predictions
CCC copies the predictions: infringement?
April 10, 2023 Copyright © 2005-07 Randal C. Picker 39
Answer
April 10, 2023 Copyright © 2005-07 Randal C. Picker 40
Answer
April 10, 2023 Copyright © 2005-07 Randal C. Picker 41
Pure Data, All Data
Hypo Universe of facts exists From that universe, Maclean collects data
on actual car sales M publishes The Red Book consisting of
that data Chicago: 2002 Honda Accord, 45,000 miles,
fully-loaded, $22,500
April 10, 2023 Copyright © 2005-07 Randal C. Picker 42
Pure Data, All Data
CCC copies it all: M alleges infringement, not of the facts but of the compilation that the Red Book represents
Yes? No?
April 10, 2023 Copyright © 2005-07 Randal C. Picker 43
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.
April 10, 2023 Copyright © 2005-07 Randal C. Picker 44
And the Compilation?
S/A/C Selection, arrangement, coordination
How Should that Apply Here? All cars v. some cars? U.S. cars v. foreign
cars? Frequency? Location?
April 10, 2023 Copyright © 2005-07 Randal C. Picker 45
CCC’s Position
The Red Book S/A/C consists of ideas: “Given the nature of compilations, it is
almost inevitable that the original contributions of the compilers will consist of ideas. Originality in selection, for example, will involve the compiler's idea of the utility to the consumer of a limited selection from the particular universe of available data. …
April 10, 2023 Copyright © 2005-07 Randal C. Picker 46
CCC’s Position
“In other compilations, the original contribution of the compiler will relate to ideas for the coordination, or arrangement of the data.”
What does M have that is protectable?
April 10, 2023 Copyright © 2005-07 Randal C. Picker 47
The Approach in Kregos Identify the Right Level of Abstraction
“In one sense, every compilation of facts can be considered to represent a merger of an idea with its expression. Every compiler of facts has the idea that his particular selection of facts is useful. If the compiler's idea is identified at that low level of abstraction, then the idea would always merge into the compiler's expression of it. Under that approach, there could never be a copyrightable compilation of facts.”
April 10, 2023 Copyright © 2005-07 Randal C. Picker 48
The Approach in Kregos
Identify the Right Level of Abstraction Kregos created form that relied on nine
baseball statistics to predict the outcome of a game
The idea here?: [T]he general idea that statistics can be
used to assess pitching performance rather than the precise idea that his selection yields a determinable probability of outcome.
April 10, 2023 Copyright © 2005-07 Randal C. Picker 49
Ideas and the Merger Doctrine
Are the Maclean predictions ideas (unprotectable under 102(b)) or expressions (protectable under 102(a))? Both?
Is the particular grouping that Maclean puts forward an idea or an expression? Both?
What does idea mean in 102(b)?
April 10, 2023 Copyright © 2005-07 Randal C. Picker 50
Defining the Idea/Defining the Expression
What is the idea here? What is the expression? “We should have a book of predictions of
used-car prices.” “We should have experts who should consider
fourteen factors in predicting used-car prices.” “We predict a 2002 Honda Accord should sell
for $22,500.”
April 10, 2023 Copyright © 2005-07 Randal C. Picker 51
Compilation Analysis in the Case
Says the Second Circuit: “We find that the selection and arrangement
of data in the Red Book displayed amply sufficient originality to pass the low threshold requirement to earn copyright protection. This originality was expressed, for example, in Maclean’s division of the national used car market into several regions … .”
April 10, 2023 Copyright © 2005-07 Randal C. Picker 52
Compilations and Merger
Red Book S/A/C Footnote 7:
“This selection includes far fewer than all extant options, and presents them in a manner that furnishes a single valuation to cover the particular option in numerous different vehicles. The editors make these choices to accommodate the practical space limitations imposed by the book’s format, while providing the information most likely to satisfy customers’ needs.”
April 10, 2023 Copyright © 2005-07 Randal C. Picker 53
Issues
Does this give Maclean a monopoly over this format?
Isn’t the merger doctrine designed to prevent exactly that?
April 10, 2023 Copyright © 2005-07 Randal C. Picker 54
The Number of Expressions Possible (Again)
Why should the number of potential expressions matter for the question of the copyrightability of a particular expression? We raised this in Baker v. Selden (seen as
important) Also in Lotus (less important) Could matter, easily, for compilations
April 10, 2023 Copyright © 2005-07 Randal C. Picker 55
Two Legal Paths
Version 1: Limited Number of Expressions Deny copyright to these expressions This is the merger doctrine: idea and
expression are one
April 10, 2023 Copyright © 2005-07 Randal C. Picker 56
Two Legal Paths
Version 2: Limited Number of Expressions Says Nothing About Copyrightability of Particular Expression Copyright the first Not a blocking position given our rules
regarding independent creation
April 10, 2023 Copyright © 2005-07 Randal C. Picker 57
Two Legal Paths
When second author independently creates same expression—as will certainly occur if idea and expression inevitably are the same—we will give second author a copyright on her work as well
Independent creation tests whether idea and expression are actually one
Which path should we choose?
April 10, 2023 Copyright © 2005-07 Randal C. Picker 58
Two Legal Paths Evidentiary issues?
Given limited number of expressions, how will we separate copying from independent creation?
Clean Room Design? Can we run a “clean room” process with the
right level of abstraction? “We want a book of used-car price
predictions: go design one for us.”
April 10, 2023 Copyright © 2005-07 Randal C. Picker 59
Two Legal Paths
Shakespeare and the monkeys? Those in the clean room will hit on the Red
book, eventually If person selecting has seen the Red book,
can just choose it Person making choice must be untainted as
well
April 10, 2023 Copyright © 2005-07 Randal C. Picker 60
Two Legal Paths
Need to be able to move up one level of abstraction to avoid exposure to first expression
Merger and Entry Barriers Should we understand merger as
preventing the entry barriers that would result from the higher costs of clean-room independent creation?