decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.

To read comments to this article, go here
What Can't You Copyright?
Sunday, December 28 2003 @ 04:36 PM EST

Exactly what is and what isn't copyrightable? Obviously you can't copyright ideas, but can you copyright lists, for example names and addresses in a telephone book? Court opinions arranged in your own personal way? Page numbers? Number assignments? The alphabet? Can the David Letterman Show copyright the numbers 1 though 10, because they have a daily "Top 10" feature? How stupid does it have to get before the answer is No, you can't copyright that?

Lawrence Lessig recently posted some materials on his blog that are helpful in this context. If you follow the thread Lessig provides, you'll be spending your Sunday afternoon the same way I am and you'll find some answers.

Here is the Lessig blog entry:

"speaking of great Court of Appeals decisions

"I’m sorry it has taken me so long to finally read the Seventh Circuit’s opinion in Assessment Technologies v. WIREdata. Judge Posner, writing for a unanimous panel, rejects an “attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner.” In the collection of great cases showing the limits of copyright — and why limits are sensible — this should rank highly (indeed, much higher than the Supreme Court’s effort in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345-48 (1991).)

"Posner is a friend. I was his clerk. But the best thing about being his clerk is that he does his own writing, which means the clerk’s job is just to disagree. But in the area of copyright and patent, I’ve found less and less to disagree with. Indeed, if you want a brilliant and balanced analysis of a wide range of IP issues, from the perspective of economics, see his (and Professor Landes’) latest book, The Economic Structure of Intellectual Property Law."

So the Assessment case found that if you compile public domain data, while you may have a copyright on your work if it is sufficiently creative (originality being required for copyright), you can't lock up the underlying public domain data and prevent others from using it.

Here is a page that lists salient cases with a paragraph on each, such as these two:

"Feist Publishing, Inc. v. Rural Telephone Service Company, 499 U.S. 240 (1991). In Feist, the Supreme Court found that no protection existed for the compilation of names, addresses and telephone numbers contained in the telephone white pages. The Supreme Court rejected the 'sweat of the brow' theory, holding that the arrangement of facts in alphabetical listing lacks the necessary degree of originality to qualify as an original work of authorship under the compilation requirement of the copyright act. The Feist decision has been widely viewed as a sweeping limitation upon a party's right to protect database collections from third-party copying.

"Hyperlaw, Inc. v. West Publishing Company, 158 F.3d 693 (2d Cir. 1998), cert denied, 522 U.S. 3732 (1999). The court rejected West Publishing's assertion that its selection and arrangement of reported case decisions in the reporter series provided West a recognized copyright interest in the page numbers."

The Hyperlaw, Inc. v. West Publishing Company case is here, and the ruling explains a bit:

"However, as is clear from the second Feist element, copyright protection in compilations 'may extend only to those components of a work that are original to the author.' Id. at 348, 111 S. Ct. at 1289. The 'originality' requirement encompasses requirements both 'that the work was independently created . . ., and that it possesses at least some minimal degree of creativity.' Id. at 345, 111 S. Ct. at 1287 (emphasis added); see also Key Publications, Inc. v. Chinatown Today Publ'g Enters., Inc. , 945 F.2d 509, 512-13 (2d Cir. 1991) ('Simply stated, original means not copied, and exhibiting a minimal amount of creativity.'). At issue here are references to West's volume and page numbers distributed through the text of plaintiffs' versions of judicial opinions. West concedes that the pagination of its volumes-- i.e. , the insertion of page breaks and the assignment of page numbers--is determined by an automatic computer program, and West does not seriously claim that there is anything original or creative in that process. As Judge Martin noted, 'where and on what particular pages the text of a court opinion appears does not embody any original creation of the compiler.' Because the internal pagination of West's case reporters does not entail even a modicum of creativity, the volume and page numbers are not original components of West's compilations and are not themselves protected by West's compilation copyright. 10 See Feist , 499 U.S. at 363 , 111 S. Ct. at 1297 ('As a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.')."

A nice resource for further digging on Feist is here.

The US Copyright Office has a FAQ on copyright, which includes this answer to question 4, on fair use, "How much of someone else's work can I use without getting permission?":

"Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians."

And here is the US Copyright Office's list of what is not copyrightable:

"Several categories of material are generally not eligible for federal copyright protection. These include among others:

"Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

"Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

"Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

"Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)"

Additionally, §102(b) of the Copyright Act says:

"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."

If you are interested in knowing how anyone could argue that page numbers could be copyrighted, here is the court's decision on West v. Mead, where the judges tried to think it through. Their decision was reviewed here. Some reactions to the decision here. Here is an address by Joel I. Klein, then Acting Assistant Attorney General, Antitrust Division, US Department of Justice, in 1997, on the subject of "CROSS-LICENSING AND ANTITRUST LAW", which mentions the case. And here is a law review article by James H. Wyman, "FREEING THE LAW: CASE REPORTER COPYRIGHT AND THE UNIVERSAL CITATION SYSTEM", that tells the whole story, including pointing out that because Feist, which was decided five years after West v. Mead, "was the Supreme Court's first opportunity to interpret the 1976 Copyright Act's express provision granting copyright protection to factual compilations and derivative works, it has a significant impact on any analysis of the holding in Mead." I am listing all this information on Mead, because there is some information on the internet on the case that isn't quite accurate. One more. And finally, a breakdown of fair use decisions.

  View Printable Version

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )