In the classic popular song, "Let's Call the Whole Thing Off," the singer laments:
"You say either and I say eyether,You say neither and I say nyther; Either, eyether, neether, nyther,Let's call the whole thing off! You like potato and I like potaeto, You like tomato and I like tomaeto;Potato, potaeto, tomato, tomaeto!Let's call the whole thing off!But oh! If we call the whole thing off,Then we must part. And oh! If we ever part,Then that might break my heart!"
How one calls a particular work may matter greatly, and the lack of protection might well break the proprietor's heart. This point is illustrated in a very thorough opinion handed down by Judge Robinson of the SDNY on November 3, 2005, eScholar, LLC v. Otis Educational Systems. Was the work a database or a computer program? The name matters for a few reasons: first, for deposit purposes, and second, in determining originality and infringement. A computer program is not a compilation: it is a set of statements or instructions used in a computer program to bring about a particular result; protection lies in the originality of the instructions or in their interrelationship. A database is a compilation, and protection lies in the selection, coordination or arrangement of the data. The deposit for a computer program is portions of the source or object code. (See Circular 61). The deposit copy for a database is the obviously the data as arranged (See Circular 65).
The relevant part of Plaintiff's work in eScholar is a "data model" used to facilitate the reporting of information about student performance for purposes such as the Orwellian-named "No Child Left Behind" act and similar state laws. The opinion goes into great detail about how the model works, but in the Rule 56.1 Statement, it is described as a "pictorial representation of the data structure in a given environment." In the copyright application, the nature of authorship was described ambiguously as a "computer program data model." At the Copyright Office's suggestion, apparently, this was changed to "computer program," but the deposit was a photocopy of the models, presumably the pictorial representations. Whatever it was, it appears not to have been source code or object code, an indication that in fact the claim was a compilation claim.
This point is reinforced when the court described plaintiff's claim as for what it nonsensically described as the "non-literal" elements of its work: "the overall selection, coordination, and arrangments of the fields and entities for its data model." Plaintiff claimed rights in the following "literal" components of its "program":
"(1) the invention of a multipart or composite key in each table, labeled a "district key" ... that permits the storage of multiple districts' information on one database; (2) a method of recording "slowly changing dimensions" by including "school year" in a table called "student," which provides a structure of organizing student data when it is combined with other fields; (3) the aggregation of assessment data into a single data structure that contains four levels of classifications for student assessments."
That sounds mostly like a database, not a computer program, a possibility that is heightened by Plaintiff's heavy reliance on authoring tools and DDL (Data Definition Language) for defining the database structures, creating and modifying the data models, and providing graphical interfaces. The name of Plaintiff's work (hence the lyrics at the beginning) is "eScholar Complete Data Warehouse."
I have no view on the merits of the case (other than to object to the description of the "non-literal" elements), and in any event, Judge Robinson denied summary judgment, but the case illustrates some of the problems of categorization and possible false dichotomies (computer program or database, as compared to just "original work of authorship").