Tuesday, September 06, 2005

Taxonomies, Compilations, and Categorization

The Sixth Circuit has become quite active in copyright cases in the last few years, now and then even issuing good opinions. One is ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700 (6th Cir. 2005). The case involved a compilation of parts numbers and follows on the heels of Judge Alioto's outstanding en banc opinion in Southco, Inc. . v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004).

The part of ATC Distribution Group that interests me is not the compilation issue, but instead the court's review of Judge Easterbrook's opinion in American Dental Association v. Delta Dental Plans Association, 126 F.3d 977 (7th Cir. 1997), in particular Judge Easterbrook's conclusion that the work in question there was not a compilation, but a taxonomy, and as such protected. The ATC Distribution Group panel expressed, understandably, some confusion about the actual basis for the ADA opinion, and for good reason: the holding is mushy on whether the protection was for numbers, the scheme of the numbers, or the descriptors that went along with the numbers, or only all three in combination.

But what bugs me is the trope of calling the work a taxonomy in the first place. The work in ADA (which my dentist let me look at over this last weekend) is a "Code on Dental Procedures and Nomenclature." Note that the copyright owner called the work a code, not a taxonomy. It is used to standardize codes (numbers) submitted for insurance claims, for those fortunate enough to have worthwhile and affordable dental insurance (surely an elite group).

The ADA surveyed all dental procedures and broke them down into twelve service groups and then divided those groups further into subgroups. For example, D2000-D2999 is for "Restorative" services; within that 02110 is "Amalgam - one surface, primary;" 02120 is "Amalgam - two surfaces, primary." The Federal government has made it a standard for submitting claims under a federal insurance act and the Preface to the Code states that there is nothing to interpret; one is to apply the Code as is.

The book as a whole in which the Code appears is clearly protectible, but defendant, which had a competing but very similar code, cleverly submitted just the numbers for registration, which the Copyright Office refused. And that, for me states the issue clearly: the question is not, as Judge Easterbrook stated it, whether a taxonomy is protectible, but rather whether defendant, who copied numbers from a protectible book, committed infringement. The trope (from the Greek "tropos," "turn") is, therefore, seeking to turn the discussion away from the true issue presented by calling the work something else with the intent that we analyze it differently because it has a different name.

But I think Judge Easterbrook even misdefined plaintiff's work. He defined a taxonomy as "a way of describing items in a body of knowledge or practice; it is not a collection or compilation of bits and pieces of 'reality.'" Really? The ADA Code described nothing; it merely listed all existing dental procedures according to a classification scheme, with the sole purpose of putting them in a mutually exclusive and exhaustive series of classes.

"Taxonomy" is derived from the Greek words "taxis" (order) and "nomos" (law). An authoritative study of taxonomies states: "A taxonomy begins empirically, rather than conceptually, with the goal of classifying cases accorded to their measured similarity on observed variables." If we use taxonomy in this sense, it is unclear how authorship, if any, in the ADA's "taxonomy" differs from authorship, if any, in a compilation. Which is why both I and the Sixth Circuit are confused.

1 comment:

Eric Goldman said...

I think there are a lot of reasons to be confused by the ADA opinion--but I agree with you, a lot of the problem is that Easterbrook misclassified the work as a "taxonomy." Eric.