Oil Industry Group Claims Copyright On Oil Pricing Data, Gets Twitter To Delete Tweets

from the not-how-it's-supposed-to-work dept

The American Petroleum Institute (API), a group that represents the oil industry, apparently releases a fee-based report on oil prices, which is released to paying subscribers a week before the US government releases "official" data. For obvious reasons, this information is fairly valuable to traders, who are more than willing to pay the monthly fee to get early access to some crucial information on the price of oil. Apparently, last week, some people then took that data, and tweeted about it... leading API to issue DMCA takedown notices, which Twitter promptly complied with.
On Tuesday, several accounts posted the API data shortly after it was released to subscribers at 4.30 p.m. EDT. The posts were widely shared across the social network. Prices extended their losses shortly after the report, which showed a larger-than-expected increase in weekly inventories.

An account named @Cornice_Trading posted the data along with a message saying, "I don't have a sub, whatchugonnado API?!?" Through Wednesday afternoon, it had been retweeted five times and had received six likes.

[....]

The accounts named by API in its complaint to Twitter include oil traders and the popular financial commentary account @zerohedge, which has more than 300,000 followers. Two tweets by @zerohedge have been removed by Twitter in recent weeks. Zerohedge, which also runs a popular website, received notices from both the social network and from API, according to a spokesman for the website.
The article notes that, in the DMCA takedown letter sent by API, the group's lawyers claimed: "The posted excerpts contain the most important content of the WSB and is the heart of the work that API has created." This is, quite clearly, an attempt to pre-empt any fair use claim. Claiming that "the heart of the work" was included is based on the infamous Harper & Row v. Nation Enterprises case about publishing excerpts of former President Gerald Ford's memoir.

But that's meaningless if it's true that the information published was just factual data about oil prices. The Supreme Court decision in Feist v. Rural Telephone makes it clear that purely factual data gets no copyright protection at all. So if the data that is "at the heart" of what API released is nothing more than aggregated factual data, then it could not be deemed to have the minimum amount of "original creativity" included, and thus is not covered by copyright.

Even beyond that, if the information was covered by copyright, there still seems to be a strong fair use argument as well. But either way, Twitter simply decided to take those tweets down. The company claimed that it "has" to do that when it receives a valid DMCA notice, but that's not true. This is a constant misrepresentation of the DMCA. It just says that to retain the safe harbors, that say you're not liable, you need to take the content down. And, yes, while many risk averse lawyers will insist those two things are the same, because no company wants to give up its safe harbors, many companies can and do reject such bogus DMCA notices, recognizing that if the notices are bogus and the content is not infringing, then they'll be safe whether or not they have the safe harbors.

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  • icon
    That One Guy (profile), 21 Mar 2016 @ 12:41pm

    On paper vs In practice

    The company claimed that it "has" to do that when it receives a valid DMCA notice, but that's not true. This is a constant misrepresentation of the DMCA. It just says that to retain the safe harbors, that say you're not liable, you need to take the content down.

    Given how utterly insane all things copyright can get, with a single album's worth of songs leading to hundreds of thousands in 'damages', for all intents and purposes they're right, a company pretty much has to immediately take down content claimed as infringing unless they want to take a huge risk.

    When the potential penalties for being found involved in copyright infringement can bury a small company, and take a nice chunk out of even a large one they really have no other option, and 'optional' becomes effectively 'mandatory', exactly as it was designed to be.

    If only the uploader of infringing content was able to be taken to court over it, and companies didn't have to worry about being involved in hugely expensive legal battles over content they had nothing to do with, then they'd be able to make measured, rational decisions as to whether or not they really believed that someone sending in a DMCA claim had a valid case and the content deserved to be taken down. That however is anything but the case, and as it stands the completely one-sided law provides all the incentive a company needs to operate under a 'remove first, ask questions later' mindset with regards to claims of infringement, while there are no incentives not to do so.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 21 Mar 2016 @ 1:06pm

    Creativity in Lists

    Oh come now. Don't you know that oil pricing can be listed with flair, panache, esprit de corps, savoir-faire, feeling, color, emotion, etc.? That makes it a unique expression, does it not?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2016 @ 1:09pm

      Re: Creativity in Lists

      But it wouldn't make it copyright infringement if the reposter was only reposting the factual data without all the flair.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Anonymous Coward, 21 Mar 2016 @ 1:27pm

        Re: Re: Creativity in Lists

        Probably depends upon whether one took their MAFIAA medicine in a timely, ongoing fashion and had their rose colored glasses (with blinders) appropriately tuned to obscure anything called fair.

        Beauty is in the eye of the beholder and that data is beautiful because they told you it was, and you can't doubt them because you are not allowed to behold it.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 1:22pm

    reply to this | link to this | view in chronology ]

  • icon
    aethercowboy (profile), 21 Mar 2016 @ 1:22pm

    I thought you couldn't copyright an API.

    (ba-dum ching!)

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 21 Mar 2016 @ 1:50pm

    An oily matter, this is. For all involved.

    reply to this | link to this | view in chronology ]

  • identicon
    Sunhawk, 21 Mar 2016 @ 2:50pm

    Facts are not subject to copyright, yup.

    I suppose they might be able to argue that those figures are trade secrets... but that would only allow them to go after the source that disclosed the figures to the first unauthorized person (as the unauthorized people would definitely not have any kind of responsibility to keep the information secret).

    Although if the leak source *didn't* sign a contract or the like that specified they have that kind of responsibility, a lawsuit there would probably fail too.

    At least, from my limited understanding of trade secrets.

    reply to this | link to this | view in chronology ]

  • identicon
    Kalean, 21 Mar 2016 @ 3:02pm

    Damn, Mike...

    You're like Foggy Nelson in here with those shutdowns.

    I'm sure they'll claim some other reason for the takedown if someone manages to ruffle their feathers enough for them to be bothered.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 3:38pm

    While most of the article is accurate. The snipe at twitter at the end is disingenuous. You and everyone else knows full-well that when twitter says they "have to take it down" they mean in order to keep their safe-harbor status.

    Your twit, as non-infringing as it may be, is worth less to them then their safe-harbor status. It sucks, but if you want it to change, you need to start harassing your congress-critter.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 21 Mar 2016 @ 5:49pm

    Mike Masnick just hates it when copyright law is enforced. Bawk bawk, Mikey! : )

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Mar 2016 @ 8:55pm

      Re:

      Step on up! Step on up! Let's all laugh at the copyright freaks! Spend your nickel, get an eyeful of the MAFIA's best and brightest! It's the man who talks like an animal, only five cents. Not for children or the women folk.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2016 @ 4:37am

      Re:

      Don't you and Whatever need to go make a baby or something?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 5:52pm

    Facts can not be copyrighted...

    but the American Petroleum Institute can get a copyright on any part of the data that is not true. Many map makers do this, creating streets or town that only exist on the map.

    reply to this | link to this | view in chronology ]

    • icon
      G Thompson (profile), 21 Mar 2016 @ 7:53pm

      Re: Facts can not be copyrighted...

      Seeded data (which is what you are talking about) unless specifically stated as seeded is still not copyrightable if it is pure numerical data.

      Names of streets, or towns that do not exist is entirely different. Though if the street name etc is misspelt (which is a way to seed as well) that too is not copyrightable.

      In this case anyway, the codes used by the API MUST exist for the API to even post them and are not seeded. Though if the actual data itself is, that creates other problems that brings the whole API data into a new world of mistrust.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Mar 2016 @ 11:12pm

    I guess these dudes haven't heard of Europe's Energy portal.. fuel prices are freely published and updated regularly (daily in most cases).

    https://www.energy.eu/fuelprices/

    they charge fees for historical statistical reports and reports of prices for other energy sources (electricity/gas).

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Mar 2016 @ 4:02am

    As sad as it makes me, I could see a potential Copyright Extension Act of 2018 expand both copyright duration and scope by granting protection to facts and ideas.

    On a side note: All the people I know who are invested in IP favor copyright extension. In true ironic fashion the last extension act 1998 left them no better off than they were before.

    They're still hoping that with longer copyright maybe one day their work will suddenly get popular and they'll have "hit the jackpot".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Mar 2016 @ 11:19am

    It is the Oil Bidnez. They don't care if it is legal or not. They will use every trick, ruse and scam they can to make their money.

    reply to this | link to this | view in chronology ]


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