25 November 2003

We Want Information
The Seventh Circuit issued a critical decision concerning databases and copyright today. It is a decision that should scare Lexis, Westlaw, et al to death. And hopefully will.

This case is about the attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner. The owner is trying to secrete the data in its copyrighted program—a program the existence of which reduced the likelihood that the data would be retained in a form in which they would have been readily accessible. It would be appalling if such an attempt could succeed.

Applied Technologies of Wisconsin, LLC v. WIREData, Inc., No. 03-2061 (7th Cir. Nov. 25, 2003) (Posner, J.), slip op. at 1.

   Appalling is about the most polite term I can think of. Basically, what Applied Technologies is claiming is that once information is entered into its database, any attempt to remove the data—even using a different database program entirely—and rearrange it for other use is a copyright infringement upon its database program. What is most critical is that the underlying data is public domain by law (under Wisconsin's open-government laws, the raw data used to assess property valuation).

   This is similar to the problems with judicial opinions in this country. Although he does not overrule the ill-considered ProCD v. Zeidenburg, Judge Posner both criticizes that opinion as substantively wrong and notes that it is irrelevant. ProCD involved the violation of a license restricting reuse and resale of data in a commercial database of telephone numbers (the yellow book, not the white book, or Feist knocks it right out) by the licensee. Posner notes that he doesn't have to decide the issue, because WIREData (the alleged infringer in this case) was not a direct licensee of Applied Technologies.

WIREdata is not a licensee of AT, and AT is not suing to enforce any contract it might have with WIREdata. It therefore had no cause to drag the licenses before us. But since it did, we shall not conceal our profound skepticism concerning AT’s interpretation. If accepted, it would forbid municipalities licensed by AT to share the data in their tax-assessment databases with each other even for the purpose of comparing or coordinating their assessment methods, though all the data they would be exchanging would be data that their assessors had collected and inputted into the databases.

Id., slip op. at 12. He does note, however, that Applied Technologies is coming awfully close to itself violating the Copyright Act:

But our plaintiff did not create the database that it is seeking to sequester from WIREdata; or to be more precise, it created only an empty database, a bin that the tax assessors filled with the data. It created the compartments in the bin and the instructions for sorting the data to those compartments, but those were its only innovations and their protection by copyright law is complete. To try by contract or otherwise to prevent the municipalities from revealing their own data, especially when, as we have seen, the complete data are unavailable anywhere else, might constitute copyright misuse.

Id., slip op. at 11.

   The best result would have been overturning ProCD and eliminating the entire mess the next time it comes up on appeal; WIREData is not a bad second-best by any means.