Court Says You Can Copyright Numerical Ratings

from the this-seems-troubling dept

The US, thankfully, still hasn't allowed copyright on databases. There's been a push over the years to allow such a database right, but this is problematic for a variety of reasons -- mainly that it's effectively a way to allow the copyrighting of facts, so long as you put a few of them together. But a bigger issue is that there's empirical evidence that the ability to copyright a database doesn't create more databases or actually help businesses. It does the opposite. It limits business -- exactly the opposite of copyright's stated purpose. If we actually had an empirically driven copyright system, there wouldn't be database rights, because the evidence that they do more harm than good is quite clear. Anyone actually pushing for a database right is either ignorant of the evidence or is hoping to profit off such a right by limiting the market.

So it was of great concern to me when I saw a blog post from a lawyer suggesting that the US courts may be effectively allowing a database right on rating data. Beyond the troubling nature of the case, the lawyer who wrote that post also claimed that database holders might finally be "getting the protection they so desperately deserve, and need." Neither of those points is true. Database creators neither deserve nor need protection -- and the evidence on that is quite clear. The database industry in the US has been thriving without such protections, while places in Europe that do have such a right have seen significantly limited growth in those industries, with the data being a lot more expensive and a lot less useful. There is simply no compelling reason why such protectionism is needed unless one wants to simply ignore all empirical evidence.

Then, as you dig into the details of the actual case, you begin to realize what a poorly reasoned and dangerous decision this is, effectively allowing copyright to be expanded to data itself. Eric Goldman does a masterful job detailing the many, many, many problems with this decision. His description of the basics of the case make it clear how ridiculous the outcome is:

A Colorado judge has reached the remarkable conclusion that a hospital publicizing its star ratings and other recognition from a third party rating service in its marketing material might be committing copyright and trademark infringement. This is a little like saying that it could be copyright and trademark infringement for a law school to include its US News rankings in its marketing material or for a book publisher to issue a press release announcing its ranking on the New York Times bestseller list. CRAZY.

Goldman goes on to break down exactly where and how the judge went wrong on every single aspect of the ruling, touching on copyright, trademark and breach of contract. You should read his whole discussion, but here's the excerpt on copyright:

Let me start with a basic proposition. A single numerical value can never be copyrighted. Ever. I don't care what formula produced the value; I don't care how many digits the number has; I don't care what explanatory text is used to describe the value. I know cases occasionally have reached the absurd result that individual numerical values can be copyrighted, including one of my least favorite copyright cases of all time, the CDN v. Kapes Ninth Circuit case. They are wrong wrong WRONG.

Courts can reach this erroneous conclusion by treating a numerical output as a "compilation" of underlying data values. If you squint, you can almost see how this makes sense. The publisher chooses the underlying values to include, uses editorial judgment to build the algorithm crunching those values, and sometimes layers subjective judgments on top of the algorithm's output. However attractive this logic is, I think fundamentally misreads the copyright statute's definition of "compile." Under the copyright act, a compilation must represent a "collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged." When a single number distills but obscures the underlying numerical values, the single number cannot reflect a selection, coordination or arrangement of the underlying numbers. Thus, according to my argument, numerical values cannot be compiled unless the reader can see those underlying values directly.

In this case, the judge gets led astray by contemplating the idea/expression dichotomy as a spectrum with "discoveries" on one end and "expression" on the other. Because the ratings aren't discoveries, the court concludes they should qualify as expression. But the court's dichotomy is fatally incomplete. Instead, the inquiry is whether a single numerical value can represent an original work of authorship because it expresses an idea. A single numerical value cannot express an idea any more than a single word ever could.

Even if one reaches the incredible conclusion that a single numerical value is an original work of authorship, then surely it is preempted from copyright coverage by the merger doctrine, which says that if there are a limited number of ways to express a fact or idea, then the idea and expression merge into a single uncopyrightable whole. It seems like the star ratings in a 1-3-5 star rating system would, by definition, be subject to merger. Sorry to state the obvious, but how many ways are there to express that someone is rated one star??? Nevertheless, this court distorts the merger doctrine by saying the idea being expressed here is the rankings of healthcare providers. This is too high a level of conceptual generality. If every judge used this level of abstraction, the merger doctrine always would be a null set.

Goldman also explains why such a dreadful ruling, which seems to go against common sense and the law in nearly every way, may set a terrible precedent and get used in other cases:

If other courts follow this judge's "logic," the potential for mischief from cases like this is enormous. Think of every reputational system that spits out a numerical assessment of the subjects it evaluates. Now, assume each and every one of those numbers is copyrighted. Individual eBay feedback scores? Individual FICO scores? Individual Billboard rankings of songs and albums? All possibly copyrighted and requiring the initial publisher's consent to republish. Add in potential trademark claims, and the crazy-o-meter goes off the charts.

Ugh. This is a bad and dangerous ruling all around. And as you can see from our original link to the case, there are some other lawyers who think it's exactly on track. That's a bad, bad sign. Hopefully this ruling doesn't stand for very long.

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Landgrab For Ownership Of Library Catalog Data

from the not-good dept

There's been an interesting (and somewhat troubling) behind the scenes fight going on concerning library catalog data over the past few months. The Online Computer Library Center (OCLC) is a nonprofit, made up of member libraries that basically tries to help facilitate access to information among libraries. That seems like a good thing. One of its offerings is WorldCat -- basically a big online catalog of library collections, so that it's easy for anyone to find books that are available at other libraries. This, obviously, seems quite useful, and many libraries agree and are a part of WorldCat. However, a month ago, OCLC announced new policies for WorldCat that effectively allowed OCLC to claim ownership over the records that any library put in its system -- and, upon doing so, limiting what libraries could do with that data (such as, say, giving it to competing cataloging services).

This has many in the library community quite reasonably worried, with specific questions about who should be allowed to "own" library records. As that last link shows, there are a number of different people and organizations involved in the creation of a basic library database record, and basically the only thing OCLC is doing is putting it online. It's difficult to see how they can then claim ownership of it.

While this may be new in the library space, this type of debate has raged for years in other arenas, and some of the findings from those earlier battles may be instructive. The issue has to do with the concept of "database rights." Normally, factual information is not subject to any sort of copyright or ownership rights for rather obvious reasons (how do you own a fact?). However, some believe that there should be separate "database rights" that allow ownership of the compilation of certain factual information. For the most part, the US has denied this right, while Europe has allowed it -- and the results have shown, quite clearly, that the US made the right decision. Ownership of database rights tends to damaging to business while allowing the data to remain free can help build booming industries.

In this case, the scenario is a little different, because OCLC isn't trying to claim a government backed "database right" over the content, but instead wants to achieve the same effective result via a unilateral change to its terms of service -- including a bit of viral licensing code that forces the "ownership" to travel with the data. OCLC doesn't really appear to have any legal authority here, but are trying to force it through by contract -- for which I'd say there's a decent chance it wouldn't hold up in court, though no one wants it to get that far. Between the unilateral change, the claiming of ownership of others' works (including public domain contributions from the Library of Congress) and the lack of database copyrights, you could probably make a good argument that the OCLC's policy change has no weight. Still, in the short term, a much better solution would be for OCLC to back off its silly ownership claim, recognize the power of open sharing of information, and focus on adding additional benefits and services for why libraries should want to work with OCLC over competitors, rather than trying to use slimy contract terms to block out competitors. And, of course, hopefully OCLC learns that pissing off your partners and customers by dumping draconian ownership claims on them is never a good business strategy.

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The Pirate Bay Threatens To Sue Over Copyright Violations

from the want-to-see-copyright-abuse?-we'll-show-you-copyright-abuse... dept

The folks who run The Pirate Bay sure do seem to have quite a bit of fun. The latest is that, in response to a report from Swedish book publishers about how they scraped TPB's results for a period of time and noticed that 85% of Sweden's best sellers could be found on the site, the folks from TPB are threatening to sue the publishers for copyright infringement. Hypocritical? Yes. But, clearly, the TPB guys are merely making the point of just how silly copyright laws are. The TPB guys aren't big believers in copyright, obviously, so any such lawsuit isn't so much hypocritical as it is pointing out the absurdities of such a system to those who seem to think that copyright systems make perfect sense.

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EU Academics Pointing Out How Database Copyrights Hinder, Rather Than Help, Businesses

from the about-time dept

For a long time, Europe has allowed "database rights," effectively allowing companies to get a copyright of sorts on a collection of factual data. The US has mostly disagreed with this, noting that facts themselves cannot be covered by copyright, even if aggregated into a database -- though, more recently there have been efforts in the US to change the law, and mimic Europe's database rights offerings. Of course, companies that aggregate a bunch of publicly available data love such database rights, as it grants them a gov't-granted protectionist system on their business model. However, the actual evidence shows that it also shrinks markets -- and when you compare US markets without database rights to EU markets with database rights, you find that the US market thrives:

Now, we actually have some good evidence about the effects of these different approaches. The United States database industry is considerably larger and more thriving, and has higher rates of return, than the European database industry. In fact, at the moment when Europe introduced sui generis database rights, there was a short one-time spike as database producers raced into the market, but then growth rates returned to previous levels, and many companies left the market. And when did Reed Elsevier and Thomson enter the legal database market in the United States? It was after a case called Feist, which said that facts, and unoriginal compilations of facts, were uncopyrightable. That is to say, European companies chose to come into a classically public information field in the United States after they had found out, for sure, that they could get no copyright in unoriginal databases. Yet, even without database rights, they're getting high rates of return. So, we have evidence showing that less protection has been better for innovation than more protection. But you could spend days listening to arguments about database rights, and you'd never hear these facts mentioned.

In fact, it's these troubling "database rights" that both easyJet and Ryanair are using to try to stop travel sites from aggregating their flight pricing.

The good news is that academics in the UK are starting to point out that these database rights can be quite damaging to businesses, rather than helpful. In the link, they're focused just on creating certain exceptions to database rights, rather than scrapping them altogether, but it's at least a step in the right direction.

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easyJet Wants To Sue Websites That Send It Business

from the is-it-illegal-to-help-someone? dept

I'm always amazed at people who get pissed off at anyone who makes their products more valuable -- especially when they threaten to sue. Like the whole ridiculousness surrounding the Associated Press threatening a blogger for sending more attention its way, for example. The latest case is even more bizarre, as European discount airline easyJet is threatening to sue various travel websites that send it business. It's difficult to see how this could possibly make any business sense for easyJet.

Now, obviously, some will claim (as easyJet does) that easyJet should have the right to only sell flights off of its own website. But if these other sites are merely scraping the content and then linking back to easyJet, then what's the problem? These sites are sending more business to easyJet, and it wants to sue them. The lawyer quoted in the article discusses copyright issues (which again, seems to go against what the company should want) and also database rights -- which is recognized in Europe rather than the US. But even if it's true that easyJet has a legal right to block these sites, it still seems like a bad business idea to sue sites for giving you free advertising -- especially when those are the sites people go to when they want to buy airplane tickets.

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