Magic Hat Brewery Sues West Sixth Brewing, Claiming 6 Looks Too Much Like 9

from the mmmmm-beer dept

You may recall that years ago Anheuser-Busch applied for a trademark on the number 312, having bought out Goose Island Brewery, who had a beer by that name. The catch is that 312 is the area code for most of Chicago, where Goose Island was based, and that seems like a sort of funny thing to trademark. But, strange as that might seem, at least AB didn't then go around suing the pants off of anyone who used any further permutation of that number.

In what's a first for me, Brig C. Mccoy shows me an instance where one brewery with a trademark on a single digit has sued another brewery over a completely different digit.

A lawsuit filed May 16 in U.S. District Court charged that West Sixth began selling beer, ale and brewpub services in 2012 using color, trademarks and designs "that closely resemble and are confusingly similar" to the designs used by Magic Hat for several years.

And if you look at the side-by-side comparison picture, you can see exactly what they mean. After all, Magic Hat #9's logo is maroon, yellow and orange, with a trippy stylized number 9 and a star. The offending logo from West Sixth's amber ale is brown, tan and silver, with a non-stylized number 6 merged with a circle and a star. In other words, they're almost nothing freaking alike in any way. The only basis for the suit appears to be that 6s and 9s are kinda similar (as in opposite of one another) and there is some incorporation of a circle and a star somewhere. And that, friends, is a shitty basis for a trademark suit. Seriously, look at the picture and tell me if you could possibly confuse the two. If you say yes, there's a good chance you recently had a lobotomy.

West Sixth appears to agree.

"They're claiming that we intentionally copied their logo, and that has caused them "irreparable harm," enough that they're asking for not only damages but also all our profits up until this point (little do they know that well, as a startup company, there wasn't any, oops!)"

West Sixth logos were created by a professional design firm in Lexington called Cricket Press that has "a long history of fantastic and creative logo designs. ... Our logo contains neither a '#' nor a '9.'"

The lack of a # is actually kind of key. As West Sixth points out on its own website, the trademark in question includes the "#" sign, so the fact that their beer doesn't have it is pretty damning by itself. But, even beyond that, the focus on different numbers is just ridiculous.

Look, within the confines of a beer can or bottle, there's only so much you can do with a logo. That said, here's a fun experiment you can do at home (assuming you're of legal drinking age). Find someone who has never tried either of the Magic Hat or West Sixth beers in question. Sit that person down at a table with a case of both beers in front of them. Ask them if they are under any illusions that the two brews are distinctly different because of the logo. When they say, "Of course not, you idiot, and why did you kidnap me from the Stop & Go?!?", ask them to slam one of each beers. Rinse, repeat. Exactly how many double-slammed-beers do you think this person would have to go through before they can't tell the difference between a 6 and a 9?

Filed Under: 6, 9, beer, numbers, trademark
Companies: magic hat brewery, west sixth brewery

DailyDirt: Pi Math

from the urls-we-dig-up dept

National Pie Day is not actually March 14th (although it really should be, if only to make it more memorable). But here's to the number, not the delicious dessert.

• Does pi contain every set of finite number sequences? The answer to that question may not be known, but the first trillion or so digits of pi appear to be statistically random -- with 0-9 appearing with even distributed frequency. [url]
• It's possible to calculate the nth digit of pi without calculating every previous digit. So the gazillionth digit of pi can be verified, if you really need to know it. [url]
• If you're thinking about coming up with a new way to calculate pi, you can check your work for the first several trillion digits. Beyond about 10 trillion digits, you're into record breaking territory, and you'll need to adopt some other strategies. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Filed Under: calculations, irrational, math, numbers, pi

Techdirt 2011: The Numbers.

from the not-the-end-of-the-world-yet dept

Happy New Year everyone! Last year's "The Numbers" post proved to be quite popular, so we decided to do it again. 2011 was yet another banner year for Techdirt.

We handled around 14.7 million visits last year (up from 2009's 11M). Those visitors checked out the 3,923 stories that we posted and submitted 205,129 comments. Oddly, the #1 story for 2011 was one that was actually written in 2010, about the ubiquitous "Free Public WiFi" mystery. It turns out that a lot of people remain curious about all those "free public WiFi" ad hoc networks you see. Two stories about SOPA/PIPA graced the top ten, as well as the harrowing censorship tale of dajaz1.com. It appears that you folks are concerned about government censorship.

2011 was also a great year for the comment voting system. Congrats to Marcus Carab and Dark Helmet, who garnered the highest cumulative scores for insightful and funniest comments, respectively -- and, amazingly, each came in second place to the other in the category they didn't come in first. I sense a growing rivalry...

The top browser used by Techdirt readers was still Firefox (35%). Chrome, which lost by a narrow margin to IE last year, blew past IE's 15% to 30%. And there are still nearly 100,000 that are, despite all of the best efforts of Microsoft to convince you otherwise, still inexplicably using IE6.

Mobile usage jumped up to 1.6M visits this year, which is nearly a 200% increase from 2010. 615k of those visits came from iPhones, versus 566k for Android and 322k from iPad. In aggregate, Apple devices did beat Android. iPhone beat out Android last year by nearly 2:1, so clearly that gap is quickly closing.

Where did this year's traffic come from? Reddit jumped in the charts this year, referring 2.1M visits, up 277% from last year's 557k. I'm a little saddened to see that Slashdot is definitely not what it used to be -- referrals from them dropped by nearly a third last year. I suppose getting Slashdotted is no longer what it used to be. Continuing to perform quite well, however, are both StumbleUpon and HackerNews. Facebook also sent a decent amount of traffic.

To hear some of Google's enemies (including politicians in Congress) tell the story, the only way sites get traffic is via search engines -- and Google specifically. They act as though, if Google isn't sending you tons of traffic, you don't exist. Google definitely does send us a fair bit of traffic, but only about 20% of our actual traffic came from searches. We certainly value that 20%, but it definitely shows that you don't have to rely on search traffic to get traffic. Even more telling, here are the top three search terms that brought people to Techdirt in 2011:

1. techdirt
2. sopa
3. tech dirt

Where are you all coming from? It's really not that different than in 2010. The vast majority of you are from the US. Canada is second, followed closely by the UK. After that, there's a pretty sharp drop off to Australia, then Germany, the Netherlands and Sweden. France, India and New Zealand round out the top 10. Last year, we noted that Japan narrowly beat out China to follow India as the leading Asian countries. This year (despite stories of how we're sometimes blocked in China), China jumped into second place in Asia, followed by South Korea, who leap-frogged Japan. Brazil was tops in South America and South Africa was tops in Africa -- same as in 2010.

All in all, people from 230 countries or territories visited Techdirt. Just like last year, there was a single visit from Christmas Island -- though, last year, we had someone in our comments suggest that the single Christmas Island visit may have been him, and not really from Christmas Island.

Last year, we noted that the only countries that we appeared to get absolutely no visits from were... North Korea, Western Sahara & Chad. Western Sahara and Chad, once again, failed to send any visitors... but, in a stunning development, we got two visitors from North Korea. And, in case you were wondering, Belarus, whose new laws will make it difficult for people there to access many websites, actually sent over 1,000 visitors last year. Also, I have no idea why, but the nearly 1,000 visitors from Gibraltar spent the highest average time on the site of visitors from any other country/territory -- averaging nearly 20 minutes per visit. People from Macedonia actually visited the most pages (on average) per visit -- at just under 6 on average from over 3,500 visitors.

And, of course, this isn't just about the odd facts, but about the overall community -- with many of you being quite loyal, which we appreciate to no end. 1.5 million of the visits -- or just over 10% came from people who visited Techdirt more than 100 times last year -- and the vast majority of those (just under 1 million) actually visited the site more than 200 times. You people rock.

Anyway, thanks again to everyone for making yet another year of Techdirt awesome. Here's to a fantastic 2012.

Top Ten Stories, by Unique Pageviews, on Techdirt for 2011:

1. The History Of The (Fake) 'Free Public WiFi' You Always See At Airports
2. SOPA Markup Runs Out Of Time; Likely Delayed Until 2012 [Update: Or Not...]
3. Apple Continues To Insist Only It Can Use An Apple In A Logo; Threatens Small German Cafe
4. Guy Who Created The TSA Says It's Failed, And It's Time To Dismantle It
5. Craigslist Trying To Destroy The Life Of Someone Who Made Posting To Craigslist Easier
6. Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details...
7. Company Thanks Guy Who Alerted Them To Big Security Flaw By Sending The Cops... And The Bill
8. NY Times & LA Times Both Come Out Against SOPA & PIPA
9. EU Officially Seizes The Public Domain, Retroactively Extends Copyright
10. PROTECT IP Renamed E-PARASITES Act; Would Create The Great Firewall Of America

2011's Top Ten Stories, by comment volume

1. If You're Arguing That Someone 'Deserves' Copyright, Your Argument Is Wrong (823 comments)
2. Do A Little Dance, Make A Little Love...Get Bodyslammed Tonight (At The Jefferson Memorial) (457 comments)
3. Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues (429 comments)
4. TSA Agent Threatens Woman With Defamation, Demands $500k For Calling Intrusive Search 'Rape' (403 comments)
5. Revisiting The Question Of Who Deserves Copyright (376 comments)
6. PROTECT IP Renamed E-PARASITES Act; Would Create The Great Firewall Of America (376 comments)
7. Senators Want To Put People In Jail For Embedding YouTube Videos (374 comments)
8. Monkeys Don't Do Fair Use; News Agency Tells Techdirt To Remove Photos (372 comments)
9. Why Is The Justice Department Pretending US Copyright Laws Apply In The UK? (351 comments)
10. Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details... (341 comments)

* Note that only 2 of the most commented stories were also among the top 10 most visited stories, once again showing that traffic and the number of comments don't necessarily correlate.

2011's Top Users, by comment volume

1. The eejit - 3,963 comments
2. Jay - 3,433 comments
3. Marcus Carab - 2,255 comments
4. Richard - 2,209 comments
5. PaulT - 1,841 comments
6. Hephaestus - 1,662 comments
7. nasch - 1,456 comments
8. Dark Helmet - 1,426 comments
9. abc gum - 1,357 comments
10. HothMonster - 1,313 comments

2011's Most Insightful Users, as voted by the community

1. Marcus Carab
2. Dark Helmet
3. Karl
4. Richard
5. Jay
6. Chris Rhodes
7. The eejit
8. PaulT
9. That Anonymous Coward
10. E. Zachary Knight

2011's Funniest Users, as voted by the community

1. Dark Helmet
2. Marcus Carab
3. Capitalist Lion Tamer
4. The eejit
5. :Lobo Santo
6. Chris Rhodes
7. Gwiz
8. Hephaestus
9. ChurchHatesTucker
10. That Anonymous Coward

Filed Under: community, numbers, stats, techdirt, traffic

DailyDirt: Math Is Hard

from the urls-we-dig-up dept

Several years ago, a president of Harvard resigned -- due, in part, to expressing his opinion that there are innate differences between men and women that contribute to fewer women in math/science professions. Since then, there have been a few studies on how people deal with math. Here are just a few quick links.

• Barbie was just stating an opinion, too: math is hard. But a study shows that girls are performing just as well as boys in math... [url]
• Some psychologists think people have an innate skill at math from birth. But that doesn't mean that kids who are bad at math should give up! [url]
• Chinese speakers tend to memorize numbers more easily because numbers in Chinese are simpler. If English speakers have a harder time because their numbers are weird, try French -- where ninety-nine is quatre-vingt-dix-neuf (roughly "four*twenty+ten+nine"). [url]
• To discover more interesting education-related content, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Filed Under: barbie, chinese, education, math, numbers

Google Tried Bidding Geeky Numbers For Nortel Patents; How About $3.14159 Billion?

from the taking-this-seriously? dept

Reuters has put together a nice recap of what happened inside the Nortel patent auction, which resulted in Apple, Microsoft, EMC, RIM, Ericsson & Sony getting the patents for $4.5 billion. There are a bunch of interesting bits of information in there, but one of the most bizarre is that rather than bidding round numbers, like pretty much everyone else, Google bid weird numbers that only geeks would recognize:

At the auction for Nortel Networks' wireless patents this week, Google's bids were mystifying, such as $1,902,160,540 and $2,614,972,128.

Math whizzes might recognize these numbers as Brun's constant and Meissel-Mertens constant, but it puzzled many of the people involved in the auction, according to three people with direct knowledge of the situation on Friday.

"Google was bidding with numbers that were not even numbers," one of the sources said.

"It became clear that they were bidding with the distance between the earth and the sun. One was the sum of a famous mathematical constant, and then when it got to $3 billion, they bid pi," the source said, adding the bid was $3.14159 billion.

Yes, they bid pi. Really not quite sure what to make of this. It could be Google hoped that they'd be able to "signal" to geeks their feelings about the whole process (which the company had been pretty clear about all along -- it didn't want to buy the patents, and seemed to think the whole process was stupid, but it felt compelled to, because it would be even worse if the patents ended up with someone else). However, it certainly does come off as pretty damn cocky -- an attitude that Google is frequently criticized for. Still, it also suggested the level of seriousness (i.e., not much) with which Google treated this whole process. It had to bid a lot of money, but the numbers acted as a bit of a protest for the mess which put them in a position where they felt they needed to do so.

The other interesting bit in the tick tock was how the groupings came about, with coalitions forming as different companies dropped out. Apparently, Intel bid heavily, and when it dropped out, there was a fight between Apple (who put together the winning coalition) and Google over who it would team up with. Intel eventually chose Google.

Of course, that setup makes the whole process seem even sillier. Once they get down to two "teams" why not then just all join forces and set the bid lower (divided among more partners), rather than continue to use each other to drive the bid higher. Well, there's one reason: if the winning bidder intends to use the patents against the losers... Google (with Intel's help) wasn't willing to go to $4.5 billion, but it seems likely they'll end up paying one way or another, down the road, thanks to the new "winners" of the patents.

Filed Under: geeky, numbers, patents, pi
Companies: google, nortel

Is Influence A Number... And Is It Based On Twitter?

from the hard-to-believe dept

There's been a lot of talk lately about figuring out who "influencers" are and a variety of services have sprung up to try to calculate just how influential a person is based on certain actions they do online -- usually specific to their Twitter of Facebook accounts. The three such services that seem to have received some attention of late are Klout, EmpireAvenue and PeerIndex, though there very well may be more. AdWeek recently wrote about how people's "Klout scores" are showing up on their resumes, and that people with high Klout scores are getting free stuff or getting preferential treatment from companies because of their influence.

I have to admit that the whole thing seems amusing to me, and in some sense, screams of a scam by users against companies. As long as you can convince them you're "influential" (whatever that means), you can get special treatment. Considering how frequently many companies have mistreated people, the idea that you can game a system (and most of these systems appear very gamable) and get special treatment has a bit of a poetic justice feel to it. But the whole thing also seems crazy, in the simple idea that just because you put a number on something, that it's then been "defined." There doesn't seem to be any clear way to make sure that any of these numbers actually mean anything, or actually have any real impact on "influence." Yet, because there's a number, it's considered important and accurate.

The other thing that makes me wonder about these sorts of things is that I don't use all of these different communications platforms the same way or for the same reasons. I use Facebook and Twitter was a method of communicating, not of influencing people. Yet if suddenly these random and arbitrary scores become important, do I start thinking differently about how I use these tools? Do I suddenly have incentives to get a lot more followers who will repeat what I say because it might increase my "influence" score? Personally, I don't care enough to do that, and it would probably ruin the benefits I get out of things like Facebook and Twitter, but it does make me wonder how attempts to define something that isn't really definable leads to a change in how those tools are used.

And, of course, the most damning point on all of these attempts to declare certain individuals as "influencers" is the research -- already a few years old -- that suggests the people who are declared as "influentials" may not really have that much influence. That is, people are most often influenced by people who they really know personally, rather than someone who is "famous" in some form or another. Now I do wonder if that's changing over time, and many people point out that Twitter and Facebook and the like often do make it feel like you get to "know" other people who you might not really know in real life, but it seems like in this rush to "grade" who is influential and who is not, we may have missed out on the fact that influence doesn't work like that...

Filed Under: influence, numbers
Companies: klout

Techdirt 2010: The Numbers.

from the happy-new-year dept

2010 was a great year for Techdirt. We thought we'd share some stats about 2010 with all of you (and yes, we're a little late on this but we finally got around to pulling together the numbers).

We posted 3,798 stories, generating 152,683 comments. According to Google Analytics, Techdirt had 11,490,135 visits in 2010. So, if Techdirt were a National Park (and you readers were visiting us in real life), we'd be the #3 most popular park in the country, just behind the Golden Gate National Recreation Area. Or if we were a museum, we'd be well ahead of the top ranked Louvre, who only did a paltry 8.5 million visits last year. Yes, I know those are unfair comparisons but it's still a fun way to view things in perspective. Of course, if any of you really do want to visit us in real life, we'd love to have you.

Separately, the traffic numbers represented continued growth over the course of the year. If we're just looking at our December numbers, traffic in December of 2010 was 62% higher than in December 2009, and that was after continued growth throughout the year. So, it looks like we ended the year with a lot more folks here in the community than we started with, which is always a nice thing.

While certainly a large part of our traffic is US-based, the community here really is quite global with visitors coming from an astounding 230 different countries or territories (and yes, we did recently have a discussion about how there were fewer countries than that in the world, but Google Analytics counts "territories" too -- so a big shout out to you, the one visitor from Christmas Island).

Not surprisingly, the top four countries were all English speaking countries (US, Canada, UK and Australia) but Germany clocked in at number 5, followed by the Netherlands, India, France, Sweden and Spain. After India, Japan was the leading Asian country, which narrowly beat out China. Brazil was the leading South American country, topping Argentina by a decent margin. In Africa, not too surprisingly, South Africa was tops with Egypt coming in second. Of course, it looks like we did not get visits from every country in the world. Among those with no visitors at all were North Korea, Western Sahara & Chad. Pretty much every other country I checked had at least one visitor, though there may be some tiny Pacific Islands that I'm unaware of that didn't send any visitors and which I can't easily spot on the map.

Within the US, just looking at states, our top visitors were from California and then New York (with Texas close behind). The state that sent the least number of visitors? Wyoming. Not like anyone lives there anyway (kidding Wyomans, kidding). If we look at the top cities worldwide, New York dominated in terms of visitors, with a surprise second place finish from London, beating out all other US cities (perhaps less surprising taking into account population totals). San Francisco, LA and Chicago round out the top five. DC comes in at number seven. Sydney, Australia is the second non-US city and number 9 on the overall list.

Most of you still use Windows, followed by Mac and Linux pulling up in third place. iPhone visitors topped Android visitors (2:1) but I would bet that's going to change over the next year. Firefox was the most popular browser. Internet Explorer (?!?) eked out a tiny victory over Chrome, though I can't imagine that staying true much longer.

In any case, thanks to everyone for making Techdirt the thriving community that it is. Here's to a great 2011.

Top Ten Stories, by Unique Pageviews, on Techdirt for 2010:

1. Best Buy Firing Employee Because He Makes A Funny Video That Doesn't Even Mention Best Buy - July 2nd
2. The 19 Senators Who Voted To Censor The Internet - November 18th
3. 'Hollywood Accounting' Losing In The Courts - July 8th
4. Facebook Threatens Greasemonkey Script Writer - March 25th
5. Why Congress Isn't So Concerned With TSA Nude Scans & Gropes: They Get To Skip Them - November 18th
6. Guy Building A Working (Yes, Working) Computer Inside A Video Game - September 29th
7. RIAA Accounting: Why Even Major Label Musicians Rarely Make Money From Album Sales - July 13th
8. Why The Wikileaks Document Release Is Key To A Functioning Democracy - December 1st
9. Sony Deletes Feature On PS3's; You Don't Own What You Thought You Bought - March 31st
10. More Casinos Succeeding With The 'That Jackpot You Won Was Really A Computer Glitch' Claim - June 7th

2010's Top Posts, by Comment Volume:

1. UK Hairdresser Fined For Playing Music Even Though He Tried To Be Legal - 599 comments
2. Defining Success: Were The RIAA's Lawsuits A Success Or Not? - 417 comments
3. The 19 Senators Who Voted To Censor The Internet - 401 comments
4. Four Years In, How Successful Has Hollywood's Attack On The Pirate Bay Been - 376 comments
5. Can Someone Explain Why Circumvention For Non-Infringing Purposes Is Illegal? - 364 comments
6. Is Intellectual Property Itself Unethical? - 337 comments
7. Why Debates Over Copyright Get Bogged Down: Conflating Use With Payment - 315 comments
8. Give A Man A Fish... And Make It Illegal To Teach Fishing - 302 comments
9. Why Voting For COICA Is A Vote For Censorship - 300 comments
10. Composer Jason Robert Brown Still Standing By His Position That Kids Sharing His Music Are Immoral - 292 comments

It seems worth pointing out that there was almost no overlap between the stories that were most visited and those that had the most comments (only one story makes both lists). This is actually pretty common. Many people assume that more comments automatically means the most popular stories in terms of traffic, but that's almost never the case. Traffic and comments do not correlate nearly as much as you would expect. Some of the stories with the most comments often involve a very small number of people continuing to have a (often quite interesting!) discussion long after everyone else has moved on...

2010's Top Users, By Comment Volume*:

1. Dark Helmet -2,278 comments
2. Hephaestus - 2,277 comments
3. nasch - 1,597 comments
4. Richard - 1,539 comments
5. Technopolitical - 1,265 comments
6. Karl - 1,249 comments
7. average_joe - 1,156 comments
8. Rose M. Welch - 993 comments
9. PaulT - 982 comments
10. ChurchHatesTucker - 918 comments

*Mike had 2,964 comments so he's technically the top commenter, but I'm not counting him here.

Filed Under: numbers, stats, techdirt

Court Says You Can Copyright Numerical Ratings

from the this-seems-troubling dept

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.

Filed Under: copyright, database rights, numbers

Why Do Newspapers Keep Publishing Bogus Piracy Numbers From Lobbyists As Fact?

from the why-newspapers-are-dying dept

With all this whining about how the death of newspapers will somehow lead to the "end" of investigative reporting, it has to be asked why newspaper reporters never seem to tire of rewriting industry press releases full of bogus numbers as factual? If newspaper reporters are really so great at investigative reporting -- shouldn't they be questioning the bogus stats? We've seen this for years in reports on "piracy" stats, which are almost always calculated by industry lobbyists who have every incentive in the world to blow the numbers out of proportion. Looking at the details, it's not at all difficult for anyone to realize that the stats are completely bogus -- but, for some reason, these lobbyists can always find press willing to restate the numbers as fact, and that often leads to a nice virtuous circle, whereby industry lobbyists and politicians can then point to the news report to support their bogus piracy numbers.

The latest gullible reporter? Tony Wong of the Toronto Star, who has written an article that probably could have been written every year for the last decade about the awful threat of piracy to the satellite TV industry. What's amusing is that it really does look just like an article years ago, even quoting bogus 2001 "piracy" stats and then just saying "that number is likely far higher today." But the reporter does nothing to verify this at all. He then goes on to talk about how the satellite TV companies are "fighting back," with a "tough new encryption system." I remember reading nearly identical stories from a decade ago, about some great new encryption scheme that would wipe out satellite TV piracy. Yet here we are in 2009, rather than 1999, reading the exact same article. Isn't it the reporters' job to ask questions about both the bogus basis for the numbers and the fact that the industry has been trotting out the same "fighting back! stronger encryption!" story for over a decade? No wonder newspapers are collapsing.

Filed Under: lobbyists, numbers, piracy, stats