Is there copyright protection in compiled data published online? As with most things of a legal nature related to the Internet, it all depends on the factual context.
A number of recent U.S. court decisions have shed some light on this issue. In Assessment Technologies of WI LLC v. WIREdata Inc., Judge Posner of the U.S. Court of Appeals for the Seventh Circuit sharply criticized a copyright owner for attempting to prevent the extraction of data from a database.
Assessment Technologies (AT) developed a computer program called “Market Drive” to store and sort assessment data from the property tax assessments of municipalities.
While AT owned the copyright in the program, the stored data was collected by municipal tax assessors. The information was in the public domain and subject to an “open records” law, which allows anyone to access it on payment of a fee to the municipality.
When WIREdata, acting on behalf of real estate brokers, sought to extract and use this information, three municipalities refused to provide it. They cited concerns that such disclosure would violate AT’s software copyright and make them liable for aiding copyright infringement.
Copyright and Taxes
WIREdata initiated a lawsuit against the municipalities to compel them to disclose the information. AT responded by commencing an action to enjoin WIREdata from attempting to compel disclosure, claiming that the information could not be extracted without violating its compilation copyright. The U.S. District Court for the Eastern District of Wisconsin issued a permanent injunction against WIREdata based on AT’s copyright claim.
The Seventh Circuit reviewed the law on rights in databases and compilations, and concluded that there was copyright in the program for sorting and organizing the data, but not in the database itself. It examined the arguments in favor of creating a sui generis right (that is, a distinct or stand-alone legal right) for databases that is based on the need to reward compilers of information for the cost and effort of compiling the data.
However, in this case, AT had not put any effort into the compilation — the work was carried out solely by the municipal tax assessors. Having concluded that the data was in the public domain and that AT could not use its copyright in the program to prevent extraction of the data, the court lifted the injunction, referring to AT’s conduct as an “abuse of process.”
Golf Scores and Morris Communications
In another recent case, Morris Communications Corp. v. PGA Tour Inc., the U.S. Court of Appeals for the Eleventh Circuit came to a different decision and upheld the compiler’s right in its database. Specifically, the appeals court upheld a 2002 U.S. District Court ruling that prevented Morris Communications and other media companies from selling real-time golf scores compiled and published online by the PGA Tour. At issue was Morris’ claim that the PGA violated antitrust laws by insisting that the media delay publishing the scores.
The PGA developed a real-time scoring system to make golf scores available to reporters. However, it required them to delay reporting the scores for at least 30 minutes or until after they were posted on the PGA’s official Web site. It further barred companies from selling the scoring information to third parties who did not have a licensing agreement with the PGA. Morris, however, often posted the scores on its own site before they appeared on the PGA’s Web site.
The court held that the PGA has a legitimate interest in keeping media companies from disseminating tournament scores online as they happen, holding that “a company that expends time and money to create a valuable product does not violate antitrust laws when it declines to provide that product to its competitors for free.”
Some groups had submitted amicus briefs stating that a ruling in favor of the PGA would limit the media’s ability to report the news. Unfortunately, the appeals court refused to address the intellectual property aspects of the case and decided the case merely on the antitrust issue. On that basis, it found for the PGA.
Protecting Yacht Prices
In another similar recent decision (Nautical Solutions Marketing Inc. v. Boats.com), a U.S. District Court in Florida held that it is not an infringement of copyright but a fair use to temporarily copy the HTML code of a competitor’s Web site to extract factual information for reposting on a competitive Web site.
Boats.com operated Yachtworld.com, a Web site that allowed subscribing brokers to post listings of yachts for sale. Nautical Solutions Marketing (NSM) launched a competing Web site, Yachtbroker.com. Boats.com alleged information cited on Yachtbroker.com was copied directly from its own Yachtworld.com and therefore constituted copyright infringement.
Boats.com alleged that two services offered by Yachtbroker.com infringed Boats.com’s copyright. First, NSM used an Internet “spider” named “Boat Rover” to search and extract facts from the publicly accessible yacht listings on Yachtworld.com. These extracted facts were then listed on Yachtworld.com’s public listings.
Second, Yachtbroker.com offered a “valet service” which, with the permission of the broker, allowed Yachtbroker.com to move, delete or modify a broker’s listing on another Web site. As a result of this valet service, Yachtbroker.com copied and pasted reformatted content from the Yachtworld.com site, including yacht photos and descriptions, on the Yachtbroker.com site.
Judge Merryday held that the “momentary copying” that occurred when the spider was used to extract listings from Yachtworld.com was “fair use of a copyrighted work” and did not constitute copyright infringement. With respect to the “valet service,” the judge concluded the copyright subsisting in the yacht pictures and descriptions belonged to the boat brokers and not to Yachtworld.com.
Further, the headings used in the yacht listings on Yachtworld.com were not protected by copyright law as the “headings merge with the idea of listing a yacht for sale.” The arguments that copyright in the “look and feel” of the Yachtworld.com site or the copyright in the compilation of the yacht listings had been infringed were also dismissed. The format of the yacht listings on Yachtworld.com and Yachtbroker.com differed substantially as a result of different layouts, color schemes and general “look and feel” of the sites.
Interpreting the Courts
Based on the above, it could be concluded that U.S. courts are more likely to protect an online database if the “sweat of the brow” involved in constructing the database was tilted significantly towards the compilation of the data itself as opposed to the technology used to gather it.
Or, perhaps, one might conclude that that judges are more likely to protect databases dealing with golf scores than they are those dealing with boats and taxes.
Javad Heydary, an E-Commerce Times columnist, is an e-businessattorney (Ontario & New York) at the Toronto-based law firm of HeydaryHamilton LLP and the managing editor of Lawsof.com.
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