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11 with the Copyright Office. For example, the Wall Street rectly in a computer in order to bring about a certain Journal Online made a single registration for all up- result."115 Computer programs are literary works under dates from April 2009 through June 2009.111 The the copyright laws,116 and audiovisual works are sepa- method of registration is also the method used by rately copyrightable as well.117 NYMEX to register its databases.112 As noted by the Fourth Circuit, the Copyright Act Registering a database or an update to a database "`makes clear that the expression adopted by the pro- does not assure that any real-time data therein would grammer is the copyrightable element in a computer be protected by copyright. As the Feist Court stated, program, and...the actual processes or methods embod- "[n]otwithstanding a valid copyright, a subsequent ied in the program are not within the scope of the copy- compiler remains free to use the facts contained in an- right law.'"118 Because "the Copyright Act contains no other's publication to aid in preparing a competing explicit standards for separating a work's expression 119 work, so long as the competing work does not feature from its underlying ideas," it is necessary to "sepa- the same selection and arrangement."113 rate[e] protectable expression of ideas in a disputed program from unprotectable ideas, facts, processes, and Guidance Number 5 methods of operation."120 If a work is copyrightable as an automatic database, Although ideas may not be copyrightable, a com- updates could be registered with the Copyright Office, puter program that expresses an idea by way of a com- but the update must contain copyrightable subject mat- puter device or machine brings the expression within ter. An automatic database may have little beneficial or the standard of communications that are copyright- 121 practical value for a transit agency. The underlying able. Although there are elements of a computer pro- data still could be copied without violating the copy- gram that are not copyrightable as ideas, it has been right. A transit agency's terms of use, end-user license, held that the rule against the copyrighting of ideas does or other agreement may be the best and possibly only not prevent an entire computer program from being 122 protection for its real-time data. copyrightable. In Apple Computer, Inc. v. Franklin Computer Corp.,123 the Third Circuit held that computer II. COPYRIGHT OF COMPUTER PROGRAMS FOR programs are not to be denied copyrightability on the THE COLLECTION AND DISSEMINATION OF basis of their being a "process," a "system," or a "method REAL-TIME DATA of operation" that is not copyrightable.124 B. Copyright of Audiovisual Programs A. Applicability of the Copyright Act to Computer Separate copyrights may be issued for an audiovis- Programs ual program and for the computer program that imple- The Copyright Act applies to computer programs be- ments the audiovisual program.125 A copyright may pro- cause of a 1980 amendment to the Act that "include[ed] tect a computer program that implements the in the definitional section of copyrightable subject mat- audiovisual component.126 It has been held "that a copy- ter a definition of `computer program.'"114 Under the right in the audiovisual display, which display is cre- Copyright Act, a computer program is defined as "a set ated by a computer program, protects not only the of statements or instructions to be used directly or indi- audiovisual from copying, but also the underlying com- puter program to the extent the program embodies the 111 The Wall Street Journal Online; published updates from Apr. 1, 2009, to June 30, 2009; representative publication date, Apr. 1, 2009; updated continuously. Registration number and 115 17 U.S.C. § 101 (2009). date: TX0006978934/2009-07-22. 116 112 Whelan Assocs., Inc., 797 F.2d at 1234 (citing H.R. REP. Group registration for automated database titled NO. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S. CODE NYMEX Database; published updates from Apr. 1, 2007, to CONG. & ADM. NEWS 5659, 5667). June 30, 2007. Registration Number/Date: TX0006935449/ 117 2008-04-02. However, the last such database registration made M. Kramer Manuf. Co., 783 F.2d at 435 n.12. 118 by NYMEX appears to have occurred in 2007. Id. at 43435 (quoting 1976 U.S. CODE CONG. & ADM. 113 Feist Publ'ns, Inc., 499 U.S. at 349. NEWS at 5670) (emphasis in original)). See also Annotation, 114 Copyright Protection of Computer Programs, 180 A.L.R. FED. 1 M. Kramer Manuf. Co. v. Andrews, 783 F.2d 421, 432 (2002). (4th Cir. 1986) (footnote omitted); 1 NIMMER ON COPYRIGHT, 119 supra note 19, § 2.04 [C][3], at 2-51 (stating that "[i]t is...firmly Annotation, Copyright Protection of Computer Programs, established that computer programs qualify as [a] work of au- 180 A.L.R. FED. at 19 § 2[a]. 120 thorship" subject to copyright protection); Brignoli v. Balch Id. 121 Hardy and Scheinman, Inc., 645 F. Supp. 1201, 1204 (S.D.N.Y. M. Kramer Mfg. Co., Inc., 783 F.2d at 435. 1986) (stating that "[t]he great weight of authority indicates 122 Brignoli, 645 F. Supp. at 1204. that computer programs are entitled to protection under copy- 123 714 F.2d 1240 (3d Cir. 1983). right law"), (citing Videotronics, Inc. v. Bend Elects., 564 F. 124 Supp. 1471, 1477 (D. Nev. 1983); Williams Elects., Inc. v. Artic Id. at 125051. 125 Int'l, Inc., 685 F.2d 870, 875 (3d Cir. 1982); Apple Computer, M. Kramer Manuf. Co., 783 F.2d at 441. 126 Inc. v. Formula Int'l, Inc., 562 F. Supp. 775 (C.D. Cal. 1983). Id. (citation omitted).
12 game's expression";127 thus, an "infringer may copy the placed the data into 456 fields and 34 master categories audiovisuals themselves or the infringer may copy the or tables.135 WIREdata sought to obtain the non- underlying computer program."128 copyrighted data. Three municipalities refused to pro- vide the data to WIREdata out of concern that provid- C. Computer Programs and Compilations or ing the data would subject them to claims that they had Databases violated AT's copyright in Market Drive.136 WIREdata Commentators addressing the copyrightability of only wanted the raw data so that it could use the data data or computer programs to collect and process data for its own purposes.137 are not in agreement on whether there is copyright pro- As the Seventh Circuit saw it, tection. According to one source, firms are interpreting, [f]rom the standpoint of copyright law all that matters is analyzing, and electronically processing data; the en- that the process of extracting the raw data from the data- hanced data are subject to copyright protection; and base does not involve copying Market Drive, or creating, "data enhancement firms are in fact copyrighting their as AT mysteriously asserts, a derivative work; all that is sought is raw data, data created not by AT but by the as- products."129 Although the case did not involve real-time sessors, data that are in the public domain....W]ork that data, in Corsearch, Inc. v. Thomson & Thomson,130 a merely copies uncopyrighted material is wholly unorigi- federal court in New York held that a state trademark nal and the making of such a work is therefore not an in- computer database was copyrightable. In another case, fringement of copyright. The municipalities would not be a unique program to assist municipalities in compiling infringing Market Drive by extracting the raw data from data for the purpose of tax assessment was sufficiently the databases by either method that we discussed and 138 original to be protected by copyright.131 Copying the data handing those data over to WIREdata.... in the "structure setup" would have been copyright in- The court held that the data in the municipalities' fringement; however, copying the underlying data in tax assessment databases were beyond the scope of AT's the database would not be a violation of the copyright.132 copyright139 and that AT was "trying to use its copyright On the other hand, some courts and commentators [in Market Drive] to sequester uncopyrightable state that a computer program is not a compilation; data...."140 If so, AT's action could constitute a violation rather the elements of the program must be judged on of the doctrine of "copyright misuse" that "`prevents 133 their own merit as being unique or original. copyright holders from leveraging their limited monop- Assessment Technologies of WI, LLC v. WIREdata, oly to allow them control of areas outside the monop- Inc.134 illustrates a situation that could arise if a transit oly.'"141 However, the court did suggest that there were agency enters into a contract with a company having a 142 other solutions. For instance, WIREdata could obtain copyrighted program to collect and distribute an the data without violating AT's copyright by extracting agency's real-time data. Assessment Technologies of the data and placing it in an electronic file; by using WI, LLC (AT) was the copyright owner that sought to Microsoft Access to create an electronic file of the data; use the copyright laws to block access to non- by allowing WIREdata's programmers to use their com- copyrightable data. AT had developed and copyrighted puters to extract the data; or by copying the database a computer program called Market Drive to compile tax and giving it to WIREdata for the purpose of extracting assessment data. Municipal tax assessors typed infor- the data.143 mation obtained from various sources into a computer In a related case involving WIREdata, it was held using the Market Drive program, which automatically that municipalities could not avoid liability under Wis- consin's open records law by contracting with independ- 127 Id. at 442. ent contractor assessors for the collection, maintenance, 128 and custody of property assessment records.144 See dis- Id. at 445. "Copying is ordinarily, due to the lack of direct evidence, established by proof that the defendant had access to cussion in Section VII.B.1, infra. the plaintiff's work and produced a work that is substantially similar to the plaintiff's work." Id. (citation omitted). 135 129 Assessment Technologies, 350 F.3d at 64243. J. Richard West, Comment: Copyright Protection for Data 136 Id. at 642. Obtained by Remote Sensing: How the Data Enhancement In- 137 dustry Will Ensure Access for Developing Countries, 11 N.W. J. Id. at 643. 138 INT'L L. & BUS. 403, 407 (1990). Id. at 644 (citations omitted). 139 130 792 F. Supp. 305 (S.D.N.Y. 1992). Id. at 647. 140 131 Assessment Techs. of WI, LLC v. WIREdata, Inc., 350 Id. at 645, 647. 141 F.3d 640, 642 (7th Cir. 2003). Id. at 64647 (citations omitted). The court stated that 132 Id. at 64344. See also Baystate Techs, Inc. v. Bentley "[t]o try by contract or otherwise to prevent the municipalities Sys., Inc., 946 F. Supp. 1079 (D. Mass. 1996) (holding that data from revealing their own data, especially when, as we have structure names and organization of those names in software seen, the complete data are unavailable anywhere else, might manufacturer's computer aided design (CAD) product were not constitute copyright misuse." Id. 142 protected expression under the copyright laws). Id. at 646. 133 143 180 A.L.R. FED. at 22 § 2[a] (citing authorities); PATRY, Id. at 648. supra note 72, § 3:69, at 3-221. 144 WIREdata, Inc. v. VIII. of Sussex, 2008 WI 69, 310 Wis. 134 350 F.3d 640 (7th Cir. 2003). 2d 397, 751 N.W.2d 736 (2008).
13 are discussed in Section VI, infra. A copyright holder Guidance Number 6 may use digital rights management (DRM) technology A computer program designed to collect and dissemi- to place a digital "fence" around any data provided to a nate real-time data appears to be protected by the copy- requestor.150 "Copyright owners use two main types of right laws. However, a copyright may not be used to existing technologies, known as `watermarking' and "sequester" data that are not otherwise copyrightable. `fingerprinting,' to create digital identifications for their works...."151 Second, "`DRM software may...provide D. Copyright and Web Sites copyright owners with control over the various exclud- A number of transit agencies reported making real- able rights of copyright ownership, including...the abil- time data available through their Web sites. As held in ity to make copies of and redistribute the work.'"152 The Ticketmaster, LLC v. RMG Technologies, Inc., courts apply the DMCA to cases involving copyright "[c]opyright protection for a website may extend to both infringement; the Act is not limited to matters solely 153 the screen displays and the computer code for the web- involving the Internet. However, the Act only creates site.'"145 In ordering a preliminary injunction in Ticket- causes of action; it does not create a new property master, the court agreed that it was highly likely that right.154 the plaintiff would succeed in showing that the defen- Section 1201(a)(1) is the anti-circumvention provi- dant received notice of and assented to Ticketmaster's sion of the DMCA. The section "prohibits a person from Terms of Use by using its Web site.146 The court held `circumventing a technological measure that effectively that "[t]he terms permit access for personal use only, controls access to a work protected under [Title 17, gov- prohibit commercial use, prohibit the use of bots and erning copyright].'"155 It should be noted that individuals automated devices, limit the frequency with which us- "who use such devices may be subject to liability under ers can make requests through the website, and require § 1201(a)(1) whether they infringe or not."156 Thus, an the user to agree not to interfere with the proper work- element of the DMCA that a copyright holder must ing of the website."147 The "[u]se of a work in excess of a prove is that the circumvention was "undertaken `with- license gives rise to liability for copyright infringe- out the authority of the copyright owner.'"157 ment."148 There are various exceptions in the DMCA, for ex- In sum, real-time data may be collected and distrib- ample, for nonprofit libraries, archives, and educational uted with the aid of a computer program or made avail- institutions,158 and reverse engineering is permitted by 159 able to users by a Web site for which a transit agency the statute. An important exception under the Act is has registered a copyright with access to and use of the that it does not prohibit fair use of information, even if site restricted by the agency's terms-of-use agreement. the information is unlawfully obtained under the Act.160 As discussed in Section IV, infra, a transit agency has a Sections 1201(a)(2) and 1201(b)(1) are the "anti- protectable property interest in its real-time data until trafficking provisions" of the DMCA. The provisions it releases the data into the public domain. prohibit trafficking "in devices that circumvent access Guidance Number 7 The DMCA modernizes copyright law for the digital age. Pub. A web site may constitute an original work of author- L. No. 105304, 112 Stat. 2860 (1998). ship protected by the Copyright Act. Moreover, the 150 Ira Bloom, Freedom of Information Laws in the Digital copyright-owner may control the use of data accessible Age: The Death Knell of Informational Privacy, 12 RICH. J.L. & via the site by the owner's terms-of-use agreement to TECH. 9, nn.27781 (2006). which users must assent when wanting access to the 151 Id. at nn.27781. site. 152 Id. (footnote omitted). 153 E. Copyright Protection and the Digital 17 U.S.C.A. § 1201(a)(2) (2009); Chamberlain Group, Inc. v. Skylink Techs., Inc., 292 F. Supp. 2d 1023 (N.D. Ill. 2003). Millennium Copyright Act 154 Chamberlain Group, Inc. v. Skylink Techs. 381 F.3d In 1998, Congress enacted the Digital Millennium 1178, 1192 (Fed. Cir. 2004). Copyright Act (DMCA). The Act applies only to a work 155 Id. at 1195 (quoting Universal City Studios v. Corley, 273 protected by the Copyright Act.149 Other federal statutes F.3d 429, 44041 (2d Cir. 2001) (some internal quotation marks omitted). 156 Id. at 1195. 145 157 Ticketmaster LLC, 507 F. Supp. 2d at 1104 (citation Id. at 1193 (citation omitted). omitted). 158 17 U.S.C. § 1201(d) (2009). 146 Id. at 1107 (citation omitted) and 1109. 159 Id. § 1201(f) (2009). 147 Id. at 1108. 160 Universal City Studios, Inc. v. Corley, 273 F.3d 429, 443 148 Id. (citation omitted). 44 (2d Cir. 2001). "The legislative history of the enacted bill 149 17 U.S.C. § 1201(a) (2009). Congress enacted the DMCA makes quite clear that Congress intended to adopt a `balanced' "to implement the World Intellectual Property Organization approach to accommodating both piracy and fair use concerns, Copyright Treaty and [to serve] as a means to better protect eschewing the quick fix of simply exempting from the statute copyright in the digital age." Chamberlain Group, Inc. v. Sky- all circumventions for fair use." Id. at 444 n.13, (citing H.R. link Techs., Inc., 292 F. Supp. 2d 1023, 1034 (N.D. Ill. 2003). REP. NO. 105-551, pt. 2, at 25 (1998)).
