Can You Copyright Blank Forms Used To File Papers With The SEC... And Then Block Selling The Filled Out Forms?

from the seems-like-a-stretch dept

Tue, May 11th 2010 5:26pm — Mike Masnick

Eric Goldman points us to the news of a lawsuit concerning the International Swaps and Derivatives Association Inc (ISDA), an industry trade group focused on the financial derivatives market. ISDA supposedly created a set of forms that can be used by parties in a derivatives transaction -- which it then registered a copyright on. Some companies used those forms as part of their filings with the SEC in EDGAR, which is all publicly available information. Another company, Socratek LLC, collected various EDGAR documents, and sold access to them, and since some of that included filled out versions of these forms, ISDA is claiming copyright infringement. The court recently turned down both a request from ISDA for an injunction stopping Socratek as well as a dismissal request from Socratek, so the case will move on.

It's difficult to see how the copyright claim makes sense. First of all, it's a form. While perhaps you can claim creative new works in a form, it seems likely that most forms would not, actually, be covered by copyright. Goldman noted:

I'm skeptical of any copyrights in "order forms." I'm doubly skeptical when the completed form was filed as a public record with the government. I'm triply skeptical given the marginal revenue streams that the plaintiff was seeing anyway.

On top of that, even if these documents are actually covered by copyright (which, again, seems like a stretch), you'd have to think that fair use would cover Socratek's actions. It seems particularly ridiculous to claim that a filled out government filed form is somehow covered by copyright.

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Filed Under: copyright, forms
Companies: isda, socratek

9 Comments

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Joe TaxPayer, 11 May 2010 @ 5:33pm

Can I copyright my form 1040 ?
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Anonymous Coward, 11 May 2010 @ 5:44pm

the issue is that they are taking a copyright form, adding some value, and reselling the whole thing. when they buy the form, are they automatically granted commercial resale rights? are the granted the rights to the form makers name? would the added value in fact have value without the underlying copyright form? is it just a derivative work? it appears to be entirely dependent on the copyright form. maybe they should have made their own forms?
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- Mike Masnick (profile), 11 May 2010 @ 5:53pm
  
  Re:
  maybe they should have made their own forms?
  
  That makes no sense. They're not selling the *forms*. They're taking the filled out content of the forms filed with the SEC and selling that as a bundle. That information is public, by law. But this lawsuit suggests the form maker can somehow block that.
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- Anonymous Coward, 11 May 2010 @ 8:33pm
  
  Re:
  Many questions, little value.
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NAMELESS ONE, 11 May 2010 @ 7:00pm

ill doodle a
BIG PENIS on the form
then they can keep it

haha
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Anonymous Coward, 11 May 2010 @ 9:35pm

Unless there are some critical facts missing from the Judge's order, I am at a loss to understand why Baker v. Selden, 101 U.S. 99 (S. Ct. 1879) is entirely missing from the order. The same can be said for 37 C.F.R. 202.1(c), which implements Baker v. Selden. The case, 131 years old, stands for one of the cental tenets of copyright law, i.e., blank forms may not be copyrighted. "Sweat of the brow" is not a consideration under Title 17.

I can only wonder if either set of counsel are versed in copyright law. The absence of Baker v. Selden gives me pause for concern. It is as basic to copyright law as V=IR is to electronics.
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NAMELESS ONE, 11 May 2010 @ 9:49pm

let em copyright it all
then when your pencils cost 50$ you will see what the problem is
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Ralph-J (profile), 12 May 2010 @ 2:22am

The solution: layers
Keep the forms and the entered data apart and only sell a layer containing the data.

You'd then either need a tool to later merge the data with an "officially provided" form, or print empty forms and data on the same paper.
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A Mehdi, 29 Sep 2011 @ 9:22am

Question about copyrighting tax forms.
Good morning, as much as I understand, tax forms and tax tables whether Form 1040, 1065 or Tax Tables for any year (2003 for example) is public property and cannot be copy righted by any individual or business. Therefore, I have 2 questions relating to copyrights

1) Are the US Tax Forms and Tax Tables are copy righted materials?
2) Can I display portion of tax tables on my website as an image?

I would appreciate any feedback and any references

Thank You
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