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Re: [dvd-discuss] Gedanken Experiment -Unix and Norton
- To: dvd-discuss(at)eon.law.harvard.edu
- Subject: Re: [dvd-discuss] Gedanken Experiment -Unix and Norton
- From: Seth Johnson <seth.johnson(at)realmeasures.dyndns.org>
- Date: Tue, 08 Jul 2003 15:31:58 -0400
- Organization: Real Measures
- References: <NABBIJFEIMBFLLCPONHIOELPNGAA.email@example.com> <3F0AFF6C.27C84BE5@ia.nsc.com>
- Reply-to: dvd-discuss(at)eon.law.harvard.edu
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John Zulauf wrote:
> the question of facts vs. copyright expression has to do with a concept
> of "editorial discretion". A database (full of facts) can be
> copyrighted (though not the facts themselves) if some creative judgment
> or human editorial decisions are reflected in the selection of the
> facts. Thus one could freely use any single fact (as it is not and
> cannot be copyrighted), but could not freely republish the collection of
> these facts.
Feist Publications said the copyright in a collection of facts was "thin,"
only covering the originality evidenced in the selection and arrangement of
the facts. Since alphabetical order and the combination of name, address
and phone number don't constitute original expression, you can freely copy
You can absolutely copy factual information in a database freely and in its
entirety. This is exactly what Feist Publications did. Just watch out for
things like narrative descriptions of properties in a real estate database,
which may be held to be expressive. But then you can also parse those
chunks of information, extracting facts from them, like "lake view,"
"oceanfront," "3 baths," etc. From another direction, if perhaps a
particular selection of fields might appear to convey originality somehow,
then just rearrange their order.
I've long said that Feist Publications is much more far-ranging in impact
than people take it for. In fact, this Supreme court decision was when WIPO
freaked and in short order enacted their WIPO Copyright Treaty, which is the
anticircumvention treaty for which the DMCA is the U.S.'s national
implementation; enacted the WIPO Phonograms and Performances Treaty, a
treaty that combines anticircumvention with the (French) Civil Code
tradition notion of a "moral right" of "integrity," to require that "DRM
metadata" be enforced; and tried to enact, but failed to get consensus on, a
Database Treaty as well.
Though it addresses databases, Feist Publications shows a profoundly
incisive recognition of the nature of digital media. Everything about a
computer is a database: the RAM, the files, the hard drives.
What's usually said about Feist is that it threw out the "sweat of the brow"
doctrine. That's true, and significant in itself. But really, the most
important thing that Feist did was boil down the definition of originality
(in the case of databases) to a purely structural definition: selection and
There are also a couple of passages, particularly significant in the context
of this decision, that are pretty direct repudiation of the very notion of
"DRM." Feist is very clear about describing the purpose of copyright in a
way that explicitly sets the free use and sharing of information as having
priority over rewarding the labor of authors:
The primary objective of copyright is not to reward the
labor of authors, but "[t]o promote the Progress of Science
and useful Arts." Art. I, s 8, cl. 8. Accord, Twentieth
Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct.
2040, 2044, 45 L.Ed.2d 84 (1975). To this end, copyright
assures authors the right to their original expression, but
encourages others to build freely upon the ideas and
information conveyed by a work. Harper & Row, supra, 471
U.S., at 556-557, 105 S.Ct., at 2228- 2229. This principle,
known as the idea/expression or fact/expression dichotomy,
applies to all works of authorship.
[. . .] "sweat of the brow" courts [. . .] handed out
proprietary interests in facts and declared that authors are
absolutely precluded from saving time and effort by relying
upon the facts contained in prior works. In truth, "[i]t is
just such wasted effort that the proscription against the
copyright of ideas and facts ... [is] designed to prevent."
Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d
303, 310 (CA2 1966), cert. denied 385 U.S. 1009, 87 S.Ct.
714, 17 L.Ed.2d 546 (1967).
DRM is Theft! We are the Stakeholders!
New Yorkers for Fair Use
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usual practice in ordinary social discourse to which one holds no claim of