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Class 4Copyright, Winter, 2010

Facts and Compilations

Randal C. PickerLeffmann Professor of Commercial Law

The Law School

The University of Chicago

773.702.0864/[email protected] © 2005-10 Randal C. Picker. All Rights Reserved.

April 10, 2023 Copyright © 2005-10 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


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


Legal “Facts” in Feist

“Two Well-Established Propositions” Facts are not copyrightable Compilations of facts are copyrightable


Copyright’s Incentives

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


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.


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.


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


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)


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.



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.



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.



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.


What is Copyrightable in a Compilation?

S/C/A Selection Coordination Arrangement


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



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

Yes



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?


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.”


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


Castle Rock Entertainment (2nd Cir. 1998)

Unprotectable facts under Feist? Instead, original expression? Says the Court:

“… [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.”


Legit and Illegitimate Use: Can’t Copy


Legit and Illegitimate Use: Can Use Ideas to Create New

Expressions


Merger: When Only One Expression of an Idea is

Possible

No Copyright in Original Expression


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”


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


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?



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?


Answer

No All facts Feist tells us facts aren’t copyrightable


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?


Answer

No Average is just as much a fact as individual

data points


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


Average “Predictions”

M never releases raw data or averages but we learn from disgruntled employee how predictions are made

CCC copies the predictions: infringement?


Answer

Should Be No Simple mathematical formula:

Prediction = Actual average Actual average is still just fact and CCC has

learned fact from prediction CCC reverse engineers prediction formula

to learn facts


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


Expert Predictions

CCC copies the predictions: infringement?


Answer

Says the Second Circuit: “The testimony of one of Maclean’s

deposition witnesses indicated that fifteen considerations are weighed; among the considerations, for example, is a prediction as to how traditional competitor vehicles, as defined by Maclean, will fare against one another in the marketplace in the coming period.


Answer

Says the Second Circuit: “The valuations themselves are original

creations of Maclean.” Yes? No?


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


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?



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.


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?


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. …


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?


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.”


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.


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)?


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.”


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 … .”


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.”


Issues

Does this give Maclean a monopoly over this format?

Isn’t the merger doctrine designed to prevent exactly that?


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


Two Legal Paths

Version 1: Limited Number of Expressions Deny copyright to these expressions This is the merger doctrine: idea and

expression are one


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


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?


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.”


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


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?

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