Monday, May 12, 2008

IceTV Iced: Kangaroos Hopping Mad

In August of last year, I did a post on a decision by Justice Annabelle Bennett of the Federal Court in Sydney, Australia in a copyright infringement suit brought by the Channel Nine Network in Australia against IceTV for the latter's electronic program guide. Ice's EPG copied schedule information from Nine's weekly guides. Earlier background on the suit can be found here in a post by Kim Weatherall, and here in a post by Peter Black. IceTV was found to have copied information from Channel Nine, but to have engaged in its own research as well, combining information from a number of sources. This activity led the judge to conclude: “It is open at law to a person to ascertain the facts recorded in a compilation on the basis of that independent inquiry. This is what IceTV did…” That made sense to me.

On May 8th, Justice Bennett's decision was reversed on appeal. Here is a link to the appellate opinion. Kim Weatherall has a long post on the opinion here, with a follow-up with other excellent links here. As Professor Weatherall points out regarding the appeal: "This truly was an all-stars copyright case: interesting issues, an all-star IP bench (including the CJ himself, plus two senior IP heavies - Justices Lindgren and Sackville) (note too - the same bench that sat on the Desktop Marketing case), no less than 4 senior counsel (all of them IP heavies in their own right) plus juniors." That said, for American lawyers, the opinion, as with the earlier opinion by in Desktop Marketing Systems Pty Ltd. v. Telstra Corporation, Ltd. [2002] FCAFC 112, involving telephone directories, may prove baffling. Not that baffling American lawyers should be any consideration for Australians: I am merely noting that Australian law on the issues of originality and infringement of factual compilations is radically different than U.S. law, at least post-Feist. (I think pre-Feist too, but there were a few sweat of the brow opinions before Feist).

I leave it to Australian copyright experts -- of whom there is a vast number in that magnificent country -- to debate whether the court of appeals got the IceTV issue right as a matter of Australian law and/or policy. I do note these remarks by Professor Weatherall:

In summary? A judgment that is consistent with the trend of Australian authority, and entirely [’entirely’ is a bit strong for a preliminary view!!!] consistent with the reasoning of the (identical) Full Federal Court in Desktop Marketing. But a judgment which also illustrates how far away, in some respects, Australian copyright law is from copyright law in other countries, including the US (with its concepts of thick and thin copyright), and the UK now that the UK has the Database directive. And a judgment that emphasises that Australian copyright law truly does protect information, and not just expression (the judgment is notable for not even talking about that issue).

My question about both Desktop Marketing and now IceTV is a conceptual one: where protection is based on sweat of the brow, how is there any room for the traditional substantial similarity analysis that the court nevertheless ploughs through, including a discussion of qualitative takings? To be clear about the context of the question: plaintiff did not claim copyright in the form of the weekly guides, meaning, I take it, the selection, coordination, or arrangement in U.S. compilation terms. Rather, the claim was in the sweat of the brow. Justice Bennett below had tried to make a fine distinction about types of labor, phrasing the question as "not whether Ice had taken the skill and labour which had been expended in programming decisions, but whether it had taken [Nine's] skill and labour of creating the work." This framing of the question at least tried to separate out two distinct activities, the first the creation of what Americans would call the creation of the broadcast day -- the actual programming that was broadcast --, and the second being whatever effort went into the creation of the weekly guide from which Ice took information. The court of appeals was having none of this: "it would seem that the originality of [the time and title] information lay not so much in the form in which None presented it, but the skill and labour expended in selecting and arranging the programs." (para 94).

To an American, I see two problems with this aside from the avowed protection of sweat of the brow (see paragraph 92 of the appellate opinion): first, it grants protection to the weekly guides based on what was done in constructing the actual programming rather than in constructing the guides, and, second, it absolutely protects facts. Given this, the opinion could have been quite short: did Ice expend its own sweat of the brow? If not, case over, and let's dispense entirely with the traditional infringement analysis. I say this not to be catty (I leave that to the IPKat, meow!), but rather to note than sweat of the brow is based on unfair competition, not copyright, so why not just decide it that way?


Anonymous said...

Interesting comments, Bill, and ta for the link-love.

A couple of additional thoughts. First, I think the Full Court tried to draw a distinction between a 'true' 'sweat of the brow' type case - a phone book type case like Desktop, and the TV program guide case. They tried, in other words, to say that the programming guide wasn't just about 'sweat', it was about selection and the 'creativity' of the programming decisions. Now, I think there are serious problems with that attempted distinction: after all, this isn't like, say, producing an anthology of 'Australia's Greatest Poems', where you might say that if someone else comes along and selects exactly the same poems, copying wholesale, then they are infringing. If it were, then the equivalent in the programming sense would be for another broadcaster to come along and copy the programming choices in their own programming. In short, I think that the 'creativity' that the court has focused on is the wrong kind of creativity for copyright protection.

And that is what gets them into trouble at the 'substantial part' stage. Having decided 'originality' is in the programming selections, they then try to say that copying down the names and times of those selections is infringement - because this is the heart of the value that copyright is protecting (just as copying expression and story in a literary work would be taking the heart of that work). But again, it doesn't really work, because IceTV wasn't copying 'what was valuable' about the guide, because it wasn't doing the same thing - it was producing a guide, not television programming.

William Patry said...

YoKimbo, I think we should call the court's theory "deemed sweat," by which sweat from one activity is deemed to be sweat for the second. P.S. did you solve the riddle of the profile picture?

Anonymous said...

Hmmm. Love the 'deemed sweat' idea. But then if the court could have been convinced to see it as sweat, maybe we wouldn't have got the same kind of analysis. the problem is that they call it 'originality' and more importantly, creative - which gives them the in to the substantial part analysis that means that taking facts, if important enough, is sufficient (as I outlined in my post in more detail).

Love the profile picture. How many pairs you up to now? I still get comments on the pair I bought when we went shopping in NYC.

William Patry said...

Well, my dear Kim, my point is that the court could have called it a Kangaroo, but that didn't make it one, like calling something an originality analysis when it is really sweat of the brow, and deemed sweat at that. The way to put the question to rest is where was the alleged originality in the schedules (not the programming) once you take off the table the form of the schedules?

I take the 5th amendment on how many kicks I have, but here is a link that answers the riddle of the profile picture:

Anonymous said...

Is this a form of abstraction theory? The program grid is a by-product of and a reflection of the authorship in designing the broadcast day. That design and the authorship inherent in it is the "master" work and the grid lifted by the guide is an outlined version - -in a sense, the plot - - and so protectable. This then makes it completely different than addresses, than baseball scores and batting averages and other such fodder for the no-sweat-of-the-brow fact gleaners.

Anonymous said...

aaaaah now I get the picture. Cute.
Agree with you re deemed sweat and all that jazz. It's just a schwizzle once you step outside the 'right kinds' of originality.

William Patry said...

Josh, I fear you have watched "The Matrix" too many times. what we would call the broadcast day may be a copyrightable compilation -- although the DC Circuit held it had no independent economic value, at least for compulsory license purposes.But there is no grid, there is nothing after that; no multiple versions of the One. Neo has shot his pitiful wad.

All IceTV took was unprotectible facts even if we assume under Aussie law that the guides were protectible based on sweat of the brow. The trial judge was right, and Zion will be saved!

William Patry said...

Kim, what's a "schwizzle?" Is it something you use to stir the ice cubes in drinks in Australia?

Anonymous said...

Bill, how would you express the broadcast day other than a grid or a video of the entire day? (For the record, just because you accuse me of watching the Matrix does not mean that my taste is so poor I would have seen Speed Racer - - The Movie made by the same crew.)

William Patry said...

Josh, no I would never accuse of watching that turkey, which I understand may not recoup its costs. I have no problem with the idea of copyright in a broadcast day, but would regard it more traditionally as the result of a selection, coordination, and arrangement.

But even if you describe the broadcast day as a grid, my problem with the Ice appeal is that it deems the weekly guide to be protectible without regard to format, that is without regard to the very thing that you would say is the essence of originality in the broadcast day. I imagine the court did this because Ice did not in fact copy Nine's format, but added new stuff and got the info from different sources.

In short, to me -- and I do want to confess I am oblivious to the marvelous nuances in Australian law on this point -- the opinion seems a way merely to find infringement for the taking of facts, all toward anti-competitive objectives. But what do I know except how to score great sneakers.

Anonymous said...

Hmmmm - I suspect a word of my mother's invention. She used to say something was a bit of a 'schwizzle' - meaning a swindle. OED notes 'swizzle' to mean 'swindle' or 'disappointment', and that's the kind of meaning I was going for.

Or it could just be the term for a stick to stir cocktails - as used after you've had a few drinks (parsh me that shwizzle shtick pleashe...).

Anonymous said...

As the sucker who once, in an interview, told the Nine Network "so sue me", I fear the Australian courts have now confirmed that mere information can be copyright. If you are the source of the information, no matter how anyone else reconstructs the same information, you "appropriated" their sweat of the brow. My (non-lawyer) take on this and some other background to the IceTV case is here.

Unknown said...

I have been at the High Court today, my report of the day's hearing of IceTV vs Nine is here:

Peter "so sue me" Vogel

Anonymous said...

The case has now been heard on appeal to the High Court, the final court in Australia. I have made some notes about the hearing on my blog

Most interesting is a shift in emphasis from whether IceTV copied Nine's guide, to whether Nine's guide really is a protected by copyright, and if so how "thin" that protection might be.

It's also worth noting that Telstra, Australia's major telephone carrier, obtained leave to appear as amicus to Nine.

Peter Vogel