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American Bankers' Association Claims Routing Numbers Are Copyrighted

Copyright

from the um,-feist-feist-fesit dept

Tue, Jun 25th 2013 09:48am -

Reader J Cronin alerts us to the apparent fact that the American Bankers Association (ABA) believes that federal routing numbers are covered by its own copyright, and they’ve sent a takedown letter to a website that published routing numbers. Greg Thatcher runs a website that, among other things, publishes bank routing numbers. Those are the numbers that appear on the bottom of checks that basically tell you how to send the banks money. Thatcher gets those numbers directly from the Federal Reserve’s website. Having a single source for those numbers is really useful for people trying to wire money, so you can see why Thatcher’s page would be really popular with lots of people. But the ABA sent this bizarre email:

Demand for Immediate Take-Down: Notice of Infringing Activity
URL: http://www.gregthatcher.com/Financial/Default.aspx
Case #: 10
Date: 30 May 2013
Dear Sir or Madam,
The American Bankers Association has received information that the domain listed above, which appears to be on servers under your control, is offering unlicensed copies of, or is engaged in other unauthorized activities relating to copyrighted works published by the American Bankers Association 1. Identification of copyrighted works:
Copyrighted works:
ABA Routing Numbers
ABA Key to Routing Numbers
Copyright owner:
American Bankers Association
2. Copyright infringing material or activity found at the following location(s):

http://www.gregthatcher.com/Financial/Default.aspx
The above copyright works are being copied, displayed and made available for copying by others, including through downloading, at the above location without authorization of the copyright owner.
3. Statement of authority:
The information in this notice is accurate, and I hereby certify under penalty of perjury that I am authorized to act on behalf of American Bankers Association, the owner of the copyrights in the works identified above. I have a good faith belief that none of the materials or activities listed above have been authorized by American Bankers Association, its agents, or the law. We hereby give notice of these activities to you and request that you take expeditious action to remove or disable access to the material described above, and thereby prevent the illegal reproduction and distribution of these copyright works via your company’s network. We appreciate your cooperation in this matter. Please advise us regarding what actions you take.

Yours sincerely,
Gareth Young
Internet Investigator
On behalf of American Bankers Association
1120 Connecticut Ave NW,
Washington,
DC 20036.

As you’ll probably note, this is a typical DMCA takedown notice. But it seems ridiculous that they’re claiming copyright on routing numbers. Thatcher responded to their email, pointing out that he was providing information that came from the Federal Reserve. While I can understand where he’s coming from, his argument doesn’t really mean very much. The federal government can distribute copyrighted works. Just because the Fed is distributing it, doesn’t mean it’s automatically public domain (if they had created the numbers it would be a different story). It would seem that a much stronger argument is that there is no copyright in routing numbers because there is no creativity in them, and they are merely factual bits of information, and you cannot copyright facts.

Either way, the ABA’s lawyers from bigshot law firm Covington and Burling shot back that the ABA had, in fact, been “creative” in creating those numbers, and thus it had a valid copyright.

The ABA Routing Number was originally developed by the ABA to identify only check processing endpoints, but has evolved over the years to also designate participants in automated clearinghouses, electronic funds transfer, and on-line banking. These advances in the ABA Routing Number were the result of significant effort and creativity by the ABA. Today there are thousands ABA Routing Numbers and they play a critical role in the integrity of bank payment systems. Each nine digit ABA Routing Number is an original copyrighted work carefully selected and arranged as a result of the ABA’s creativity. Copyright exists from the moment of creation of each ABA Routing Number and registration in the United States is voluntary.

I have trouble seeing how that passes the laugh test. The lawyer who wrote those words, Nigel Howard, must have known they were ridiculous when he wrote them. He’s an experienced lawyer. In the same letter (embedded below), Howard points out, reasonably, that the ABA is concerned about the continued dissemination of retired numbers. That’s a legitimate concern, but it’s not a copyright issue. It’s also a concern that is easily taken care of by giving Thatcher up-to-date info on routing numbers, or (here’s a crazy thought) having the ABA publish them itself. But, no, Howard explains:

The ABA is currently re-assessing with Accuity whether it will engage in any licensing programs, but does not have a licensing program available for websites like yours at the current time.

Well, maybe rather than bullying small sites like Thatcher’s with expensive lawyers and highly questionable copyright claims, the ABA should be figuring out a way to fix that problem.

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Companies: american bankers association

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Comments on “American Bankers' Association Claims Routing Numbers Are Copyrighted”

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75 Comments
Anonymous Coward says:

Re: Re: Re:2 Re:

Plus, a registration helps to prove your case.

Southco v Kanebridge (3rd Cir. En Banc, 2004)

Relying on the short phrases regulation, the government tells us, “the Register of Copyrights routinely determines that a part number does not `constitute[ ] copyrightable subject matter'” under 17 U.S.C. ? 410. The government also calls to our attention letters from the Examining Division of the Copyright Office that illustrate this practice, and the government notes that Congress has not disturbed “the Copyright Office’s long-standing practice against registering short phrases, despite repeated and extensive revisions of the copyright code.”

?.?.?.?.

We believe that the Copyright Office’s longstanding practice of denying registration to short phrases merits deference.[Note 5]?[Cases omitted.] We accept the Copyright Office position and believe that it logically extends to part numbers.

[Note 5] We do not decide what degree of deference is warranted under the circumstances.?.?.?.?.

Seegras (profile) says:

Re: Re:

s/should/can/ It’s impossible to copyright facts.

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

there is no category “information” there. And as long as you don’t enact any stupid “Leistungsschutzrecht”, there is no way that there CAN be any rights on it.

Anonymous Coward says:

Re: Re: Re:

The Dewey Decimal System is also far more complex, and I believe the copyright protects the system of numbering, not the numbers themselves, as is implied here.

In any event such a claim is extremely tenuous and tedious, and the lawsuit was eventually settled, so I’m not sure if it would have held up in court or not (hopefully not).

John Fenderson (profile) says:

Re: Re: Re: Re:

I believe the copyright protects the system of numbering, not the numbers themselves

Something’s not right there. Copyright covers the expression of ideas. With the DDS, this would be the numbers themselves, or any documents written that describe the system. The system would not be copyrightable, as it is an idea, not an expression of an idea.

Anonymous Coward says:

Re: Re: Re: Re:

I believe the copyright protects the system of numbering

The ?system of numbering? ?

17 U.S.C. ?102 – Subject matter of copyright: In general

(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.

The ?system of numbering? ?

Anonymous Coward says:

Re: Re: Re:2 Re:

I’m not a lawyer, it just seemed to make sense to me.

Yes I know that logic is probably responsible for half the idiots in congress today.

However, it seems that,

1. It was a trademark dispute, not copyright

2. Unless it was renewed at some point, any relevant copyright has long expired.

3. My point is probably moot

out_of_the_blue says:

Actually, there may be some ROUTING in the numbers.

It’s not necessarily arbitrary as IP numbers are: you should try to grasp that in the old days, gadgets had to be simple. So if the numbers do encode information that requires a (minor) act of creating, therefore copyright should apply. — And no one else has any valid claim! That’s another point you kids don’t grasp: not everything is YOURS to just do with as you wish. — But now thanks to Misappropriating Mike, I’m sure you’ve all got checkbooks out and are looking at the MICR trying to figure out how to abuse it!

PaulT (profile) says:

Re: Actually, there may be some ROUTING in the numbers.

“arbitrary as IP numbers are”

Damn, that’s the dumbest thing I’ve read from you guys since an AC tried claiming that WEP wasn’t crackable!

If you put as much effort into actually learning how technology works as you do in spouting uninformed garbage… well, you probably wouldn’t post here. Either you’d spend too much time actually learning how the real world works, or you’d be so ashamed at how wrong you’ve been all this time you wouldn’t show your face.

Anonymous Coward says:

Re: Re: Re: Filing for a copyright

Pretty damn unlikely, but I wouldn’t put it out of the range of possibility.

The general rule from courts that have really considered copyright protection for very short works is that the shorter the work (e.g., word or phrase), the greater the quotient of originality required to obtain protection.

I’m not aware of any case ever upholding copyright protection for a single word. I am aware of cases upholding copyright protection for, e.g., price estimates.

In fact, there was a recent case that refused to grant summary judgment of no copyright protection for a ranking of an NFL draft prospect (which could reasonably be characterized as a single number).

dr evil says:

copyright vs patent

I have the patent on making a number have a meaning. I guess they will hear from me about violating my patent with their copyright. (actually, I have a similar problem right now.. a trademark was granted to a group that lifted my websites copyright covered text wholesale.. funny to see some text in there (the trademark docs) that has no relevance to their product)and text here that has no relevance to the post.. 😀

also, they know they are on shaky (like San Francisco earthquake zone shaky) ground since they indicated that they didn’t need to register the ‘original’ (my quotes) work. Guess all phone numbers are copyright covered too? And license plates? And street numbers? Highway numbers? who has the copyright to my SSN?

DannyB (profile) says:

Does the ABA have a copyright licensing program?

Does each check printer get a coypright license from the ABA to print routing numbers on checks?

Various software systems I’ve worked on over the years, which printed checks, and in some cases the MICR characters at the bottom. We never obtained or heard of any copyright license from the ABA. And we worked closely with one or more banks during development.

So is everyone using ABA in violation of copyright because they have not obtained a copyright license that gives them rights reserved exclusively to the copyright owner?

Anonymous Coward says:

Re: Model numbering systems also copyrightable?

ATC Distribution Group v Whatever It Takes Transmissions & Parts (6th Cir. 2005)

ATC claims that WITT and Hester infringed its copyrights in the parts catalog, the individual part numbers contained in the catalog, the illustrations contained in the catalog, and its self-described “Numbering System Manual.” Appellees do not contest the allegation that they copied these works and items. Rather, they raise the affirmative defense that ATC abandoned any copyright interests it might have had by widely distributing the catalog, and argue in the alternative that none of the works or items listed are eligible for copyright protection.

The district court rejected Appellees’ abandonment claim, but agreed that the catalog, part numbers, illustrations, and the manual lacked the originality required for copyright protection, and that Appellees’ admitted copying of these works and items could not have constituted copyright infringement as a matter of law. The district court therefore held that Appellees were entitled to summary judgment on ATC’s claim of copyright infringement. Because we agree with the district court that none of the works copied by Appellees were eligible for copyright protection, we need not reach the issue of abandonment.

(Emphasis added.)

Avatar28 (profile) says:

How is this different than a phone book?

IIRC, one of the companies that made one of those phone book on CD products several years back got sued for copyright infringement. The courts ruled that a list of phone numbers was not copyrightable as it is just raw factual data. The phone book itself (with it’s layout and such) could be covered by copyright but the data within the phone book (i.e. the numbers) could not. I believe this would be no different.

Anonymous Coward says:

Re: How is this different than a phone book?

I believe you’re referring to Feist v. Rural, which was mentioned in an earlier comment. That case made it all the way to SCOTUS, which gave a 9-0 ruling saying essentially what you did.

This case is not the same as Feist v. Rural. Instead of arguing that their list of numbers is copyrighted, the ABA is claiming that each individual routing number is a copyrighted creative work. The problem with this argument is that it is absurd.

John William Nelson (profile) says:

Why this happens?from a lawyer

Covington Burling lawyers need to bill hours. Nigel Howard is no exception. His client, the American Bankers Association, believed (wrongly) that they have an “ownership” right in some numbers.

Instead of explaining to the client that there stance is incorrect, Covington Burling decides to back an incorrect cease and desist letter.

Let’s be charitable. Let’s say Mr. Howard spent 1 hour reading the response from Mr. Thatcher, reviewing the file in the matter, and drafting his letter. Or, alternatively, as a partner he may have had an associate spend this 1 hour.

Depending on who spent the time?Mr. Howard or Joe Doe Associate?you have the potential of this 1-hour bill being $300 or $500. This is another billable hour for the firm. Another billable hour for the partner’s credit (and possibly the associate’s).

Further, this billable hour will get lost on an invoice to the ABA which includes many billable hours for many matters. So the ABA general counsel will not notice and question the hour.

Plus, there may be a followup response from Mr. Thatcher. That will be more time that gets to be billed. Not a lot, but nevertheless a nice bit of time for the firm. Let’s say another 2-3 hours potentially in the tune of potentially another $1,500.

In fact, this matter could be managed in such a way that this becomes a bigger issue for the ABA. Heck, maybe there are a series of correspondence, and more research has to be done on the question of whether these numbers are copyrightable. Then the insignificant matter becomes a real “project.” This project might end up with another 10-20 hours of partner and associate time?anywhere from $6k to $20k.

Plus, Mr. Howard does not have to initially challenge the premises of his client. Instead of serving his client by actually advising his client on the law, and on the practical side effects of these kinds of actions (such as this story on Techdirt), he can choose not to counsel his client and instead send out clearly erroneous threat letters.

The upside is two-fold: (1) not challenging an important client on questionable decisions and (2) potentially milking more from this matter down the line.

The only down side really is that Covington Burling and Mr. Howard have chosen not to counsel their client on the legal and practical issues facing it in this matter. They have declined to discuss the risks associated with this kind of practice. They have waived their duty to counsel their client in lieu of serving merely as a drafter of legal documents.

This happens all the time with many lawyers. For example, look at the case involving that New Jersey township ( Epic Cease and Desist Letter ). The lawyer is looking to get paid. A side effect of the initial silly letter is that it fires up the other side (sometimes) and results in more billable hours. If it doesn’t fire up the other side, then that usually means the bullying and intimidation based on questionable or false legal grounds worked and silenced a client’s critics. One way results in more money for the lawyer, the other results in a satisfied client. Neither results in counseling a client on the risks associated with a particular legal action.

I deal with lawyers like this more often than I wish. Some will even admit they don’t care about the law and are just satisfying their client’s wishes. I wish I could say this will result in those lawyers making less money, or having less respect in the legal industry, or having a harder time finding clients, but I cannot.

You just have to deal with the jackasses as they come.

Anonymous Coward says:

Re: Why this happens?from a lawyer

This includes a hell of a lot of assumptions.

The Covington attorney(s) may very well have advised the ABA about the weakness of their position, but told them that they could make the claim and send out the letter and see what happens for about $_________. Perhaps the ABA thought that was a wise use of funds to try to prevent a use they don’t like.

Charles R says:

Case Law

Unfortunately, there is some case law that supports the ABA’s position.

http://www.law.cornell.edu/copyright/cases/197_F3d_1256.htm

But there is also case law that supports Greg.

Here are some overviews.

http://www.coolcopyright.com/chp4.htm

I know Greg personally and I’m going to recommend that he contact the EFF. If anyone can and would help it would be them.

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