Re: Who's on Feist?

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

Mike Godwin writes:

: After speaking with my friend Pam Samuelson at Computers, Freedom,
: and Privacy here in Toronto, I've come to the conclusion that Bruce
: Hayden and others were right, and that I was wrong, with regard to
: whether Feist should be read as protecting compilations of facts
: based on selection alone (apart from arrangement).
:
: I think the thing that has been so mystifying to me with regard to
: this compilation business is why, given that Feist protects
: compilations, did Westlaw, Microsoft, and others lobby for the
: Database Protection Act both at WIPO and in Congress? After all, you
: don't need the Act in light of Feist's protection of selection-based
: compilations.

But there is no selection in Westlaw and Microsoft's primary databases;
they publish everything they get from the courts.

And whatever copyright protection they have is very thin.  And fair use
allows people to copy almost everything they have except their casenotes.

And without somesort of database protection Hyperlaw is likely to win.

The important point is that Feist recognizes that the copyright in
compilations is thin.  All that is protected is the (in the case of Lexis
and Westlaw non-existent) selection and the (in the case of electronic
databases the non-existent) arrangement and whatever original material
the databaser contributes.

So it is no wonder that West and Lexis want something stronger to back
up their claims than post-Feistian copyright.  Didn't West have to
pay attorney's fees recently for making the claim that copyright
protected their page numbers?

The fact that Cyberpatrol may be able to claim a copyright in its lists
means something, but not that much, what with the thinness of the
protection and the fair use issues.

Remember, your confusion started with what at least appeared to be
a vicious attack on James Tyre for pointing out that there were selection
criteria included in the list of censored sites.  You seem to have
thought, and you seem to still think,
that once the compiler of a database or a list can show that it has
a copyright that anyone who copies the list or the database is going
to lose an infringement suit, totally ignoring the thinness of the
protection and the fair use doctrine and the fact that copyright is no
more a protection for fraud than it is for anti-trust violations, and
the first-amendment and things like that.

The importance of Feist is not in its holding, but in its strong dictum,
that the copyright on compilations is thin.

--
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