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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).