Court Says You Can Copyright Numerical Ratings

from the this-seems-troubling dept

Thu, Jul 16th 2009 1:00pm — Mike Masnick

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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Filed Under: copyright, database rights, numbers

32 Comments

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anonymous bozo, 16 Jul 2009 @ 1:09pm

copyright pi
ok, I'll be the first to say it. I'm going to copyright the number pi.
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- 2.71828182845904523... but you can call me "e", 16 Jul 2009 @ 1:54pm
  
  Re: copyright
  I'm gonna copyright google!!!!!!
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Anonymous Coward, 16 Jul 2009 @ 1:13pm

It isn't a copyright of a number, wake up.

It's the copyright of an original work, the rating. The hospital using the rating as part of their advertising (without seeking permission) is using someone else's copyrighted material (ratings) in their ads.

It's isn't copyrighting a number.

Mike, as always, you take things to their illogical and extreme conclusions. WTG.
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- Anonymous Coward, 16 Jul 2009 @ 1:29pm
  
  Re:
  ...which is exactly what Mike was arguing against?
  
  WTG.
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- Ryan X, 16 Jul 2009 @ 1:43pm
  
  Re:
  You obviously did not read the post:
  
  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.
  
  So, any combination of a number and context. Are you arguing that this promotes the progress of science and arts?
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- Mike Masnick (profile), 16 Jul 2009 @ 2:34pm
  
  Re:
  Mike, as always, you take things to their illogical and extreme conclusions. WTG.
  
  Interesting. Most of the conclusions are actually from Eric Goldman, one of the more respected legal minds on these particular topics.
  
  So, I would guess your complaint is with him. Would you care to explain how he is wrong?
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  - Anonymous Coward, 16 Jul 2009 @ 4:41pm
    
    Re: Re:
    (brooks, thanks for the extended post, you did a good job of explaining my short comments)
    
    How is he wrong?
    
    Gee, let me see: Lawyers (especially those pushing "rights" cases) tend to take everything to absolute extremes and wild (and unfounded) bizarre absolutes to try to make their point, often forgetting things like the scope of a decision or the underlying ideas behind it. Often, they intentionally misunderstand judgements in order to make a point that is otherwise not obvious (or even relevant).
    
    A database of ratings is an interesting thing, because if the data is unique and new, then what it contains is no more and no less copyrightable in theory than a book or a magazine article.
    
    Example: Car and Driver magazine reviews a new car, and writes a long 5 page review, very verbose. They also assign it a rating of 91 out of 100. Now, is the rating any more or any less a new work than the review? Is the review some how copyright but the actual ranking not?
    
    The number 91 isn't copyrightable. The rating of 91 out of 100 for a given car by Car and Driver magazine should be. It's their expression, nobody elses.
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    - CleverName, 17 Jul 2009 @ 7:32am
      
      Re: Re: Re:
      "A database of ratings is an interesting thing, because if the data is unique and new, then what it contains is no more and no less copyrightable in theory than a book or a magazine article."
      
      They are the same. One is a collection of data, the other a book or magazine.
      
      "The rating of 91 out of 100 for a given car by Car and Driver magazine should be. It's their expression, nobody elses."
      
      It is still just a number. What if the competition mag compiled their own independant data, review and number out of ten rating that just happened to turn out the same ? They would not be allowed to publish their work because it came to the same conclusion ?
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      - Anonymous Coward, 17 Jul 2009 @ 8:01am
        
        Re: Re: Re: Re:
        "It is still just a number. What if the competition mag compiled their own independant data, review and number out of ten rating that just happened to turn out the same ? They would not be allowed to publish their work because it came to the same conclusion ?"
        
        They could publish it all they want, you cannot copyright a number. But they couldn't call it the "Car and Driver ranking of 91 out of 100". There is no copyright on 91 out of 100, just in using the combination of the ranking and the source (which is what the hospital effectively was doing).
        
        Read this slowly: You cannot copyright a number in and of itself (not easily, anyway, some phone numbers perhaps). You can copyright work product (the rating), but not the number in and of itself.
        
        How hard is it to understand?
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    - Anonymous Coward, 17 Jul 2009 @ 8:19am
      
      Re: Re: Re:
      "My name is Joe."
      "He said his name is Joe."
      "I'm suing you for copyright infringement, for using my expression without permission."
      
      "We rate this car 91 out of 100."
      "Car and Driver rated our car 91 out of 100."
      "We're suing you for copyright infringement, for using our expression without permission."
      
      Wonderful world when you can start suing people for quoting. Or start copyrighting facts.
      
      God help you if you write a history book.
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- Brooks (profile), 16 Jul 2009 @ 3:17pm
  
  Re:
  What our cowardly friend here seems to be saying is that it's not copyrighting a number if some work went into producing them number, because then the number is (as the Colorado judge found) a form of expression. At least, that's my best guess from the anonymous post while amounts to little more than "YOUR WRONG!!1"
  
  It is a simple fact that Wine Spectator rated a particular wine 92 points. Their editorial writings justifying the number are clearly copyrightable. Use of their logo in reporting that may or may not be a trademark issue. But god help us if we ever get to the point where the fact of a rating becomes a copyright issue.
  
  Fairly obvious unintended consequences:
  
  - Anybody giving ratings will be able to "license" the rating to the products they review. Reviews are already a notoriously dodgy business; add the profit motive that positive reviews generate more licensing revenue and they get even worse
  
  - If ratings are copyrightable by this logic, it seems pretty clear sports scores are. 49ers 50, Cowboys 3 becomes a compilation of the per-quarter scores, and therefore copyrightable.
  
  - Really, you can extend this to any fact that is produced or deduced from any other fact. Got a new physics formula? Well, it's probably a compilation of observations and other formulas.
  
  Our anonymous and cowardly friend's opinion notwithstanding, I'm with Mike and Eric on this one. The only potential positive outcome for anyone comes at huge expense and zero benefit to society.
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  - Anonymous Coward, 16 Jul 2009 @ 4:53pm
    
    Re: Re:
    Brooks, I think you are lumping some stuff together that isn't actually right.
    
    Ratings should be able to be licensed as they are a unique and new expression. The expression of a rating (10 outta 10!) shouldn't be different from the numerical (10/10).
    
    I think the sports scores thing is going a little beyond, as it isn't a rating but a result of an event. There is plenty of current control on that information (at least while the event is going on) and I don't think any copyright would affect media outlets reporting the facts, just perhaps people attempting to resell the information in books or online.
    
    There is a difference between "facts" produced and speech. Again, is a rating (100%) different from typed speech "this one rates one hundred percent perfect"? The second one is copyrightable as part of a larger text, why would a rating be any different, if produced independently?
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Hugh, 16 Jul 2009 @ 1:56pm

well......
Well just to let you know, the hospitals pay to get that rating. So its not like the third party thats rating the hospital isnt already being paid. The hospitals pay for the company to put out surveys to people that stayed or visited the hospital (as an inpatient or outpatient) and the company puts the patient rating into a data base and they use their special algorithm to come up with the hospital rating and compare that to other hospitals in its database. So the hospital has already paid for the service. Just seems like the third party that did this survey decided that hey they are using our work to get more business lets sue and get more money out of them.

The only surveys that are done for free, are state and jacho surveys but those are what allow a hospital to accept patients and bill insurance companies.
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Steve R. (profile), 16 Jul 2009 @ 2:19pm

Category Suggestion - Court Decisions
Mike: Would it be possible to have a "Court Decisions" category (for published court decisions)? It would make searching for court decisions a bit easier.
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- VRP, 20 Jul 2009 @ 7:03pm
  
  Re: Category Suggestion - Court Decisions
  This isn't a lone individual begging.
  I second his suggestion / request.
  Many if not most court decisions are subject to interpretation, and misinterpretation, whereby it would be good for readers or some to actually read the pertinent decision.
  
  Even a link to the full text decision would be helpful,
  or at least a proper [legal] citation for us to correctly access it.
  
  VRP
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Anonymous Coward, 16 Jul 2009 @ 2:54pm

A rate this blog a 4. You cannot refer to the TechDirt as having a 4 rating without risking infringement.
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- Anonymous Coward, 16 Jul 2009 @ 4:54pm
  
  Re:
  No, I can rate it a 4 as well, but that is MY rating, not yours (although we have the same name for posting purposes, so the point may be lost).
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Paul, 16 Jul 2009 @ 3:07pm

But, is the ruling that wrong, really?
The notion that a number can never be copyrighted, if taken as absolutely true, can be extended in a direction that I assume you would find disturbing. For instance, a single letter cannot be copyrighted. Heck, a single word cannot be copyrighted, either. Therefore, by analogy, any process that creates the words and the resulting compilation of words, can't be copyrighted. Surely you don't believe that copyright fails to protect in such an instance.

But, we know that isn't reasonable. The words result in a concept, an expression of idea, a descriptive, a story, etc. and becomes eligible for copyright.

In the same way, a collection of numbers can become expressive of an idea, even tell a story (in theory). So, why not allow copyright there?
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Lawrence D'Oliveiro, 16 Jul 2009 @ 4:06pm

I Am Not A Number...
import sys
charset = " ',?ISacdeghimnoprsty"
modulo = 23
s = 2978388820331734242124191054855360217692995394100104784471532996885851492706246936058576506498224729 217085487791295668186326610990535683594333234557696942522412135251569
num = iter(range(2, 9999))
while s != 1 :
    n = num.next()
    if s % n == 0 :
        sys.stdout.write("%s" % charset[(n - 1) % modulo])
        s /= n
sys.stdout.write("n")
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- ChurchHatesTucker (profile), 16 Jul 2009 @ 6:57pm
  
  Re: I Am Not A Number...
  Screw that, I claim "5"(tm)
  
  See my lawyer, bitches...
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- Lawrence D'Oliveiro, 16 Jul 2009 @ 9:06pm
  
  Re: I Am Not A Number...
  Just pointing out the fact that you can encode all kinds of creativity in a single number.
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- Xanthir, FCD (profile), 17 Jul 2009 @ 6:43am
  
  Re: I Am Not A Number...
  Clever clever. ^_^
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tracker1 (profile), 16 Jul 2009 @ 4:34pm

I can see it now...
This (insert product/place here) was rated (insert rating) by "A known high profile company."
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Next logical step, 16 Jul 2009 @ 4:42pm

OMG !!! - Say it isn't so !!!
http://www.theonion.com/content/node/29130
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- Anonymous Coward, 16 Jul 2009 @ 4:55pm
  
  Re: OMG !!! - Say it isn't so !!!
  Again, sorry, but you are making the mistake of thinking they are getting a copyright on a number. FAIL.
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CrushU, 16 Jul 2009 @ 5:20pm

Congratulations
Take down the health ratings signs out of restaurants. Those are copyrighted! (All lawyers please eat at the restaurant that scored 34/100 without knowing about it now because of this ruling.)
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- Anonymous Coward, 16 Jul 2009 @ 6:20pm
  
  Re: Congratulations
  Again, not a very intelligent comment. The health ratings are issued by the government (local or otherwise) and not subject to copyright, as they are public information (and published as such).
  
  Please, you are making the lawyer in the article look bright.
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Idiot Basher Smasher, 17 Jul 2009 @ 6:14am

For the idiots with small minds...
For those of your who don't understand the reprocussions of this ruling.... think about this...

If I create a program that has a large formula that puts together letters in random order and generates say... 100,000,000,000,000 results... and I call this the "words that can be used in a story generator". Say 1% of those are actual english words. Technically, according to the ruling, because I used a formula to create those words... I now own the copyright to those words. Even though they existed before... I now own the copyright.

If you use the word in the context of what I generated it for - namely, a story - you are violating my copyright because I used a formula to create that word.

Is this an EXTREME example... yes... but look at the judge's reasoning... technically... this is the same. I used a formula to create a result... so I can copyright the result.

PS - I'm already working on several formulas.... words that can be used in blogs, words that can be used as search words, words that be used in books, words that be used in children's stories.

My sequel will be... numbers that can be used in statistics, numbers that can be used in childrend's books, etc.

Woohoo!
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itchyfish, 17 Jul 2009 @ 7:01am

The road to actual privacy?
Just to look at this a little sideways... The copyright of a number generated by system could be a path to true individual privacy. My household has an algorithm for determining how much I can spend on a purchase, etc. I don't think it would be difficult to apply this ruling to those sorts of numbers. Therefore, one could copyright a whole slew of personal information that could not be used by anyone without licensing. Imagine telling equifax that they need a license in order to publish your credit report :)
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randomguy, 12 Oct 2009 @ 8:19pm

so copyrighting a sequence of numbers would or would not hold any weight if there was a legal dispute about the matter?
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lrobbo (profile), 23 May 2012 @ 11:05am

Are there any limits to how far copyrighting laws can go . . . it would seem not, common sense does not apply . . .
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Drew Carson, 25 Aug 2019 @ 11:20am

databases of ratings (ranging from 1-5) are still databases of numbers (ranging from 1-5). These should not be protectable under US copyright law.

That said, the broader issue here is one of what levels of protection US copyright law provides information shared at different "levels of measurement", when is a psychometric concept proposed by Stevens. ( see https://en.wikipedia.org/wiki/Level_of_measurement )

Nominal is the simplest, where you categorize something as member of a category. So you might say, "This is a Republican" and code it numerically as a 0 or 1.

Ordinal is next, and it represents a rank-order, e.g., 1st, 2nd, 3rd. Most 1-5 star-based rating scales are Ordinal in nature. One codes it numerically as 1-5, for example.

Then there are interval and ratio levels of measurement, which are straight numbers.

In practice, each number for every measurement gets mapped to a text statement. That's really what "scaling" is, mapping numbers to a meaningful set of text statements.

At issue is perhaps whether one type of level of measurement deserves more copyright protection than others, or whether one needs to consider the associated text statements as well, and whether this need to consider also varies by level of measurement.
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