Feist and the copyrightability of lists (was Re: [CP-Legal]

["Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>]

I do wish you people would change the subject line, considering
that the present rather naive discussion is taking place on
Cyberia-L and not on the CP-Legal list.  I have changed it in this
response, and hope the the rest of you will follow suit.

Mike Godwin writes:

: James Tyre writes:
:
: >>But the fact of what is blocked is not copyrightable. It's just a
: >>list, and no deeper a list than the list of names in Feist.
: >
: >There is a missing fact here, that the CyberNOT list is not just a list of
: >what is blocked, the list itself includes the blocking categories assigned
: >by the humans^H^H^H^H^H^H machines working for the company.
:
: Why do you think this makes a difference, James?

It obviously makes a difference because Feist says that if there
is minimal reactivity in the selection of what goes into a compilation
of facts then the work is copyrightable.  (But fortunately Feist
also says that the copyright protection in such cases is thin.)

: Are you saying the blocking categories are not facts?

I can't speak for James Tyre, but obviously the blocking criteria are the
criteria for selecting what goes into the list and are not facts.  (Of
course, it is a fact that those are the criteria that is used, but so
is it a fact that the words of a poem by Robert Frost are a string of
words (or a string of alphanumeric characters).  But of course the fact
that that is a fact does not in fact keep the poem from being protected
by copyright under Feist or under any other legal doctrine.

I am afraid that Mike Godwin is us reverting to his old tendency of making
nonsensical arguments.

: Are you making the CyberPatrol copyright argument?

Quite clearly that is an argument that CyberPatrol can make.  It hardly
helps to pretend that the argument doesn't exist (even though recognizing
the possible validity of the argument also entails recognizing that
Mike Godwin's arguments are pretty much without legal basis).

: >If the blocking categories were kept separate from the list, that would be
: >another story, but it might be wise if this discussion addressed the actual
: >facts.
:
: Are you making the pro-CyberPatrol argument that the blocking
: categories are creative expression, James?

Don't be nasty.

Obviously pointing out that one should pay some attention to the facts
is not making the other side's argument.  If one insists on discussing
imaginary facts and also on ignoring the arguments that favour the
bad guys, one is going to have one's head handed to one when one actually
goes into court willfully unprepared.  Mike Godwin was once a trial lawyer,
and apparently a fairly good one.  I certainly hope that in those long
gone days he did not pretend to himself, as opposed to others, that there
was no merit in the other side's arguments.  And I see no reason then or now
that he should deny that there is always something to be said for the other
side.  It there isn't, then there is hardly any merit in winning; just as
there is little merit in shooting ducks in a barrel.

And anyway, if the lawyers for our side go into court convinced that there
is no merit in the other side's arguments, then we are going to be the ducks
in that barrel.

: Do your clients know you're doing this?

That question is despicable.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu
        NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists