tag:blogger.com,1999:blog-12505562.post8690154492155436014..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Ahoy Matey, Compilation Copyright OverboardWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-12505562.post-51808963639350662062007-07-19T11:57:00.000-04:002007-07-19T11:57:00.000-04:00Thanks Valerie, for you thoughtful comments. The t...Thanks Valerie, for you thoughtful comments. The thrust of my post was on the standard to be used for infringement of compilations, and much less on whether this particular compilation was infringed. On the particular infringement, I had treated the broker as providing the uncopyrightable facts, and plaintiff the selection, coordination, or arrangement of those facts. I don't think that analysis is changed by whether the broker chooses to include this fact or not that fact, but it would change (for me) is the brokers also dictated the final format of the compilation. I had assumed that plaintiff had a fairly settled format into which the brokers' information was plugged.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-34165304060628747492007-07-19T11:50:00.000-04:002007-07-19T11:50:00.000-04:00This case intrigued me from the beginning. I don’t...This case intrigued me from the beginning. I don’t share the same views as Williams main article, but I do agreed with his statement in a later blog “that each case has to be decided on its facts”. So I first want to go back and look at the facts.<BR/><BR/>1st the BUCNET service is a computer program for Yacht Brokers so they could place vessels that they have for sale and share their listings with the other Yacht Brokers. It is my understanding after narrowing down what BUCNET was actually trying to protect, it came down to the selection of information and the order in which the information was displayed.<BR/><BR/>After reviewing this case it’s clear that it was the brokers who collected the information, wrote about each section of a yacht and proceeded to enter their information, that they collected and wrote, onto the BUCNET multiple listing system. <BR/><BR/>Then we have the defendant, which created a similar product. They asked brokers to join their system. As many brokers joined multiple systems they started to join the defendants system. As the brokers joined they took their listing and copied it into the defendants system, in some cases they were copied from the brokers personal documents, other MLS’s and in some cases from the Plaintiffs print outs.<BR/><BR/>After reviewing the listings side by side they are formatted differently, however the main section of the listings is very similar. Now, if “Facts” are not copyrightable, and it is the broker who describes each aspect of a vessel, then the information is purely non-copyrightable material. In this case BUCNET claims only the selection, order and layout as copyrightable. But here is where it gets gray, if the broker does not enter something such as the year of the vessel, or a section or room within the vessel, then that information does not get displayed. Wouldn’t it be reasonable then to determine that it is the broker who determines the selection and the information that will be displayed, not the Plaintiffs’ multiple listing system? And if the broker had the ability to change the order of the information displayed, then it would be reasonable to believe that it was the brokers who selected the order, regardless if the broker felt the system default order was fine? After reviewing all the facts it seems the only thing BUCNET could claim is the visual look of the layout. If that was different then I could not see where BUCNET had any creativity in the selection, order and layout.<BR/><BR/>Copyright protection of a compilation is the least protected because of its grayness and rightfully so. So, in this case, the facts justify a higher standard of similarity; Virtually Identical. I believe the 11th circuit erred in their decision. They should have accepted the oral objections from the defendants’ lawyers, but instead stated that the attorneys did not submit their objection in writing and give a formal proposal of how the jury instruction should have read.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-2272462010109804452007-06-23T07:41:00.000-04:002007-06-23T07:41:00.000-04:00I like both thin crust and deep dish pizza. But wh...I like both thin crust and deep dish pizza. But whether I have pigged out will depend on how much I eat of each and will vary according to the size of each. A two inch deep dish may be less than a 16 inch thin crust. My point is that each case has to be decided on its facts rather than abstract tests that say all thin crust pizzas have to be eaten in their entirety before you pig out, while deep dish pizzas can always lead to piggery. I think juries can understand that.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-65109988654857723082007-06-22T22:52:00.000-04:002007-06-22T22:52:00.000-04:00In the abstract, Prof. Patry, you are right. But ...In the abstract, Prof. Patry, you are right. But in application where there is a robust population of copyrightable subject matter a substantial similarity in infringement is different from circumstances where the subject matter is "thin." The language itself makes this clear. If you take an inch of something 12 inches wide the taking is substantial and presumably similar. If you take one twelfth of an inch of something just one inch wide, it is easy to see that a jury would consider the taking less substantial even though proportionally identical. It is possible for something to be so thin as to never be credible as substantial at all.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-47362280870974103692007-06-22T16:32:00.000-04:002007-06-22T16:32:00.000-04:00Hi Fred, I will try and track down the jury's inst...Hi Fred, I will try and track down the jury's instructions.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-33476599320885596702007-06-22T16:16:00.000-04:002007-06-22T16:16:00.000-04:00While I see the logic in your view, Bill, do you t...While I see the logic in your view, Bill, do you think it can be easily conveyed to a jury via instructions that are something less than an introduction to copyright law? <BR/><BR/>I've always suspected that the "virtual identity" test is the court's way of recognizing how difficult it is for a lay person to separate the "expression" from the unprotected elements from a predominantly factual compilation, then apply a "substantial similarity" test.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-7779794550217015892007-06-22T11:41:00.000-04:002007-06-22T11:41:00.000-04:00Indeed, thanks as always Dr. P.Indeed, thanks as always Dr. P.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-20993779952313753132007-06-22T11:39:00.000-04:002007-06-22T11:39:00.000-04:00I'll redirect my HT to the person who pointed me t...I'll redirect my HT to the person who pointed me to the opinion: C.E. Petit of <A HREF="http://scrivenerserror.blogspot.com/" REL="nofollow">Scrivener's Error</A>.Mike Madisonhttps://www.blogger.com/profile/02804134848037086951noreply@blogger.com