Appeals Court Says You Can Copyright A Collection Of Facts... If You Leave Out A Few

from the wait,-what? dept

Thu, Jun 28th 2018 10:42am — Mike Masnick

The 9th Circuit is at it again with copyright. For whatever reason, when the 9th Circuit gets a copyright case, it frequently seems to mess everything up about it. This latest case -- Experian v. Nationwide Marketing Services -- is no exception. One of the most famous, and most important, copyright cases to hit the Supreme Court was the Feist case. We've mentioned it many times before. The short summary is that a phone book publisher had inserted a few "fake" names and numbers into its book to try to catch copycats. It found one, and sued for copyright infringement. The Supreme Court rejected it, noting that copyright does not apply to facts, and clearly rejecting any notion that mere "sweat of the brow" in collecting facts gives you a copyright.

This was good. But... there was one part of the ruling that still left open the potential for mischief, and appeals courts have been making mischief in that loophole ever since. Here's the issue: 17 USC 103 allows for copyright in "compilations," though it notes this copyright "only extends to" the creative input in making the compilation, and not the underlying works (whether they are covered by copyright or not). The common sense explanation of this is that if, say, you're putting together (with the proper licenses) a "best of..." CD (let's say "Best of the 70's"), then you can have a copyright on that compilation. Not in the underlying songs, which you've licensed properly, but in the creativity in choosing the 7, 12, 15 or whatever number of songs, and the order you've placed them in. That requires some creativity, and it may be enough to get a fairly narrow copyright.

In Feist, the question was whether or not putting together all the phone numbers and names was covered by that compilation setup, and the Supreme Court said no. A mere collection of facts has no creative element and thus can't be considered a compilation for the purpose of establishing a new copyright. That's good. But the opinion bent over backwards to suggest that lots of other compilations of data might have the requisite creativity. And... far too many courts have taken the Supreme Court up on that proposition, potentially eviscerating the valuable promises of Feist.

That takes us to this case. Here, Experian, as you're probably aware, is one of the massive consumer data services, and one of its databases, the ConsumerView Database, contains around 250 million records about individual consumers, pairing together their names and addresses. Names and addresses. This seems pretty damn similar to Feist's names and phone numbers, right? Well, an upstart data collection company, Nationwide Marketing Services (or Natimark) somehow got its hands on a database called the National Consumer List, with about 200 million records. At some point, it tried to sell that database to Experian (apparently, the whole market is somewhat incestuous in passing around and selling data back and forth between each other, using different databases to mix and match and keep things up to date).

Experian analyzed the data from the Natimark NCL list and found that it was way too close to its own ConsumerView Database (CVD), finding it 97% the same (a later analysis said 94%). Thus, this lawsuit. To me, this seems like a pretty clear application of Feist. Names and addresses is factual information, there's no copyright in the compilation, toss the case. And that's what the district court originally found. Experian tried again, now using trade secrets. Once again, the district court said "nuh-uh." The case was then appealed to the 9th Circuit Appeals Court... who really messed it up and decided that, yes, Experian can have a copyright in the compilation.

The opinion goes through a long list of other data compilation cases, with rulings on either side, and finally says there's enough creativity in the collection. Why? For two key reasons. First, Experian's database left some people out -- such as the elderly. By not including the "entire relevant universe known to it," the court concludes that it has made creative choices in what not to include. Second, Experian employees had to make some decisions about which address goes with which people. Specifically, in compiling these databases from multiples sources they may find that there are multiple possible addresses for an individual, and Experian employees had to choose which address to put down. And that, in the minds of the 9th Circuit, is the level of creativity necessary to get a copyright.

Experian’s selection process in culling data from multiple sources and selecting the appropriate pairing of addresses with names before entering them in the database involves a process of at least minimal creativity. The listings are compiled by first collecting and comparing multiple sources, and then sorting conflicting information through the creation of business rules that Experian created to select from among the conflicts. As the Fifth Circuit said in Mason, selection is sufficiently creative when the compiler makes “choices . . . independently . . . to select information from numerous and sometimes conflicting sources.”

But... that seems an awful lot like bringing back the "sweat of the brow" argument. It's not creative choices being made here. It's choices around which information is correct -- i.e., factual.

The exclusion of elderly people also seems like a bizarre factor on which to judge "creativity."

Experian’s employees, like the compiler in Key Publications, also exclude information they deem irrelevant to the interests of Experian’s marketing clients, information such as business addresses, and the names and addresses of the very elderly and incarcerated. See 945 F.2d at 513. Such exclusions indicate some “thought and creativity in the selection” of names and addresses to include in the database, id., which indicates the “modicum of creativity necessary to transform mere selection into copyrightable expression.”

But, under that standard, it would seem that Feist itself was decided incorrectly. Remember, the whole reason why Feist became a case in the first place was because the original phone book had added fake names and numbers. How is that any different than choosing to exclude names of old people? Indeed, you could make an argument that adding in fake numbers requires more creativity than excluding factual data on old people.

Under this standard, it seems quite easy to basically wipe out Feist entirely. If you want a copyright on your big collection of purely factual data, drop a few entries that no one needs, and claim that was your creative choice.

In this case, Experian still probably isn't thrilled with the result, since after establishing that Experian can have a copyright in the compilation, it then says Experian failed to actually prove infringement. The court notes that to prove infringement of a compilation, you need to show that basically the entire compilation was copied. But, here that was not shown.

In this case, the Experian database that was allegedly infringed was one updated through September 2011. Neither that entire database nor Natimark’s entire, allegedly infringing database was introduced into evidence, and perhaps as a practical matter could not have been. Nevertheless, there must be sufficient evidence of content to make a fair comparison....

Experian contends that it has established a triable issue as to copying by offering the opinion of an expert that the match rate between Experian files and the allegedly infringing Natimark files is higher than the match rate between the files of Experian and one of its legitimate licensees. Experian asks us to hold that it has presented circumstantial evidence of copying sufficient to send the case to a jury. It fails to cite any authority from this circuit or elsewhere permitting infringement to be established on the basis of circumstantial evidence, and in the absence of any direct comparisons.

It also points out that Experian's own evidence shows that the Natimark database was only 80% the size of Experian's, and that's not enough to show that the entire compilation was copied. So that dooms Experian's copyright argument. But, still, the decision that the copyright exists in the first place is quite troubling and could create all sorts of trouble. It will enable a fake "sweat of the brow" right, which should be cause for concern. This could have all been avoided if everyone recognized that compilation copyrights shouldn't be for merely collecting giant tubs of factual data, but compilations of copyright-protected material. Unfortunately, Congress (perhaps stupidly) included the term "data" in its definition of compilation. It would be nice if Congress rectified this mess by deleting that word from the definition, but there's little chance of that happening any time soon...

As we were just discussing, the US's lack of a "database right" as found in Europe, has actually been a huge boon to innovation, especially on the internet. This ruling could create some problems for that by establishing a de facto database right, if the initial compiler takes a few meaningless steps to establish the modicum of "creativity" necessary to satisfy the court here. And, of course, it's still not clear why adding in fake info doesn't qualify, while deleting a few entries does.

For what it's worth, the court also overturned the lower court's ruling on trade secrets, saying that there's enough evidence to say a jury should determine whether or not Experian's database is covered by trade secret law. This is... also bad, but wading into the huge mess that is trade secret law is something that will probably cause me to start banging my head repeatedly on the wall, and I really have no desire to do that right now. Perhaps another time.

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Filed Under: 9th circuit, compilations, copyright, creativity, data, database rights, facts, feist
Companies: experian, natimark

30 Comments

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Anonymous Coward, 28 Jun 2018 @ 10:51am

Here is a compilation of all my favorite articles from Techdirt:

::Lists every article they have ever published::

I now own Techdirt. Sorry, Mike.
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That Anonymous Coward (profile), 28 Jun 2018 @ 10:51am

IP IS OUR MOST VALUABLE ASSET!!!!!!!
Because it certainly isn't our legal system that beds over backwards to create more IP corporations can own.
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Fred Danford, 28 Jun 2018 @ 10:58am

The 9th Circuit is the most overturned appeals court in the US.
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DannyB (profile), 28 Jun 2018 @ 11:05am

FoxNews will be delighted to hear it
Certain news sources will be happy to know that leaving out facts might allow their lawyers to claim that their copyright is somehow strengthened.

What if you add non-facts to the collection of facts? That would seem to indicate creativity that makes it copyrightable.
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Mike Masnick (profile), 28 Jun 2018 @ 11:19am

Re:
I now own Techdirt. Sorry, Mike.

Shit.
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Mike Masnick (profile), 28 Jun 2018 @ 11:20am

Re:
The 9th Circuit is the most overturned appeals court in the US.

Not actually true. I know it was a meme that went around for a while on Fox News, but, as you probably know, they're not always correct.

http://www.politifact.com/punditfact/statements/2017/feb/10/sean-hannity/no-9th-circuit-isn t-most-overturned-court-country-/
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Stephen T. Stone (profile), 28 Jun 2018 @ 11:22am

Re: Re:
Hey, it was a good run.
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Anonymous Coward, 28 Jun 2018 @ 11:57am

Re:
no, no, you need to add some creativity. Delete any articles about old people, then you'll own Techdirt.
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Advocate (profile), 28 Jun 2018 @ 12:23pm

Eliminate Copyright!
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John Roddy (profile), 28 Jun 2018 @ 12:34pm

Not too long ago, I listened to some old Greg Proops stand-up where he casually referred to them as the "9th Circus Court." That name seems to get more and more appropriate over time.
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OldGeezer (profile), 28 Jun 2018 @ 12:51pm

Your info is out there, NOTHING you can do about it!
I don't remember the name of the company, but some time back I clicked a link where you could enter your name & find out what information they had in their data base on you. Some of the information was very accurate & some was outrageously wrong. I wish I was 30 years younger.

It was obvious that companies I do business with are selling info about me. Did you ever read the "privacy" statement from your credit card company they send at least once a year? They always have an opt out of sharing your info with "affiliated" companies where you need to contact them to do this. Not only now, but every time, but every time you get a new statement. An affiliated company is any that are willing to pay.

This is also used as a loophole for the do not call list. I find it creepy when I get calls who know my name. They usually hang up as soon as I ask "who sold you my information"? To my surprise last week a woman put her supervisor on. He had euphemisms for telemarketer, but really surprising was he admitted they kept 85% of what they collected for the charity. I have seen sites where they list various charities & 15% is generous compared to some. He said they bought my info from an "information broker".

Pointless now, but after a lot of searching on my ISP web site, there were a list of companies buying your info & you had to opt out for each one of them separably.

Forget do not call. I have a Panasonic phone that blocks up to 250 numbers. Not a complete solution, but will take care of the persistent ones. I answer calls I am sure are probably junk & say nothing because my machine will pick up if I don't. If there is no ambient sound, it is probably waiting for you to speak to start playing the recording. They will disconnect after a few seconds silence. There is a good site called 800notes to look them up. Calling them back will nearly always be a non working number. They can even spoof legitimate numbers like Medicare. When I asked Medicare about this, they said they ALWAYS contact you by mail & only call after you first called them. She said the call would come from their resolution center & NEVER 1-800-MEDICARE.

My favorite is when I get calls from some police charity & I ask "are you a cop"? CLICK!
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Anonymous Coward, 28 Jun 2018 @ 1:00pm

Preexisting material, selection, facts
...
A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.
(Copyright Law: Chapter 1)

----------------------------------------------

To avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter... "[t]here cannot be any such thing as copyright in the order of presentation of the facts, nor, indeed, in their selection." Such an historical interpretation, whether or not it originated with Mr. Hoehling, is not protected by his copyright and can be freely used by subsequent authors.

The same reasoning governs Hoehling's claim that a number of specific facts, ascertained through his personal research, were copied by appellees. The cases in this circuit, however, make clear that factual information is in the public domain...
(Hoehling v. Universal City Studios)
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ShadowNinja (profile), 28 Jun 2018 @ 1:20pm

So... bottom line no matter how the courts rule on appeal, **don't** sell any data to Experian, or they'll sue your ass.

I fail to see how would be a win for Experian when it would guarantee they have less accurate data in the future.
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Anonymous Coward, 28 Jun 2018 @ 2:22pm

Typos to fix
said / side

quality / qualify
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tp, 28 Jun 2018 @ 2:50pm

Facts vs copyrightable subject matter
Here's how you can regognize a fact: If you find two separate databases to have exactly the same data, can you find another theory how the information is matching exactly than the fact that someone copied the data. If the theory is that "end users type their names and addresses always in the same way", it's clearly plausible theory for why two databases have the same data related to people's names and addresses.

People's names and addresses are facts, because it's easy to see that end users will always give the same piece of information when their name and address is asked in some paperwork.

Creative copyrightable output on the other hand is always different. If you ask a person to design a chapter in a book, it'll be different every time it is written, because persons are learning new techniques and concepts and repeating the same chapter over and over again is not how creative stuff works. Thus copyrightable subject matter, if you find two compilations to have exactly the same data, the only reason for that is that the information was copied.

This distinguishes facts from copyrightable subject matter.

Note that this applies to our previous discussion about the shape of the sculpture. There's no way for getting exactly the same shape, unless the shape (or images of the shape) was copied from the original sculpture. Even the author of the sculpture, who knows exactly how the sculpture was implemented, wouldn't be able to get exactly the same shape again. Thus copyright applies to the shape.
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discordian_eris (profile), 28 Jun 2018 @ 3:36pm

Re:
"Because it certainly isn't our legal system that beds over backwards"

Oddly apropos there. Also sounds painful.
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Anonymous Coward, 28 Jun 2018 @ 3:39pm

Re:
Copyright Elimination!!!!!
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Anonymous Coward, 28 Jun 2018 @ 3:46pm

So.....
if someone takes a much larger document which has the names of certain judges scattered throughout it, along with hundreds of other words, then "creatively" removes most of those words so that it leaves a bunch of names and offensive epithets, would those same judges support the "copyright" on that?
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Anonymous Coward, 28 Jun 2018 @ 6:31pm

Re: Facts vs copyrightable subject matter
That you keep insisting on claiming that lawyers are wrong on the subject of copyright, such as your stake that the law guarantees you a six million dollar mansion, is hilarious.

Hilarious as in misguided and pathetic.
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tp, 28 Jun 2018 @ 9:22pm

Re: Re: Facts vs copyrightable subject matter
> such as your stake that the law guarantees you a six million dollar mansion, is hilarious.

What is pathetic is that govt havent been able to produce even a computer model of the requested mansion, even after I have provided necessary computer software and tools to create such models.

It's as if the govt isn't doing any work at all.
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Anonymous Coward, 28 Jun 2018 @ 9:50pm

Re: Re: Re: Facts vs copyrightable subject matter
Join the line of other ordinary laymen waiting on government incompetence. Or is that too hard for you creative snowflakes?

Never mind that a model mansion and a physical mansion are two different things altogether.
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tp, 28 Jun 2018 @ 9:57pm

Re: Re: Re: Re: Facts vs copyrightable subject matter
> Never mind that a model mansion and a physical mansion are two different things altogether.

Obviously I need to be able to approve their plans before the real one is built. Otherwise they'll provide some doghouse and call the work done.
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Anonymous Coward, 29 Jun 2018 @ 1:04am

Re: Re: Re: Re: Facts vs copyrightable subject matter
What I can't understand is why cunts like you keep insisting on engaging with a fucknugget who thinks the government and law owe him a fucking mansion at taxpayers' behest. Nice job feeding the professional troll, dickhead! Report and move on!
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Ninja (profile), 29 Jun 2018 @ 6:04am

Re: Re:
Cue videos of Mike, Tim(s), Karl et al working in a damp, run down place in the Seychelles and a sad background song.

Also, cue the usual trolls screaming while ripping their hairs out: "CUUURSE THIS ANONYMOUS COWARD! IF ONLY I HAD THE IDEA BEFORE!"
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NaBUru38 (profile), 29 Jun 2018 @ 6:11am

So this case proves that less is more.
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tp, 29 Jun 2018 @ 7:18am

Re: Re: Re: Re: Re: Facts vs copyrightable subject matter
> who thinks the government and law owe him a fucking mansion at taxpayers' behest.

Our side of the globe, filthy rich means that you can buy enough garden elfs to fill the whole garden. Of course if your mansion is large enough, the elfs will cost whole lot more.

But these copyright folks promised that if we worked hard and followed copyright's rules accurately enough, they would make us richer than bill gates. Now that I've done the requirements, I expect to become filthy rich any time soon.
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Anonymous Coward, 29 Jun 2018 @ 9:01am

Re: Re: Re: Re: Re: Re: Facts vs copyrightable subject matter
Now that I've done the requirements

What, two buses' worth of advertisements and you expect the planet's governments to fund you?

Let's add contractual law in addition to the copyright law you don't understand.
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tp, 29 Jun 2018 @ 9:16am

Re: Re: Re: Re: Re: Re: Re: Facts vs copyrightable subject matter
> two buses' worth of advertisements and you expect the planet's governments to fund you?

There's two problems with your idea:
1) the ads weren't the main work
2) the compensation doesn't need to come in form of funding

Basically, if they can find existing garden elfs and a mansion, that also works fine.
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Anonymous Coward, 29 Jun 2018 @ 6:33pm

Re: Re: Re: Re: Re: Re: Re: Re: Facts vs copyrightable subject matter
the ads weren't the main work

Yet that's exactly how you expect the planet's governments to find you and offer you what you consider to be compensation. And that's at least six million dollars' worth by your standards. That you don't consider that a leap is telling.

Basically, if they can find existing garden elfs and a mansion, that also works fine.

What, you think the average layman has spare mansions lying around?
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Anonymous Coward, 1 Jul 2018 @ 2:59pm

Re: Re:
I think it's a bit much to rate that claim False. They might not have the highest reversal rate (even though the reversal rate is above average) but in raw numbers they certainly are the most reversed due to their sheer size.

For example, in the October 2017 term, SCOTUS reversed the Ninth 12 times out of 15 (plus one 4-4 split.) The First, Third, and Sixth Circuits may have been reversed in 100% of the cases heard that term, but that was only a combined 8 cases.
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