Copyright & The White Pages - A Synopsis
            by Scott Marlowe, AKA T'xai Robles (Craft name)

Copyright and the white pages, a short synopsis of what 8 supreme
court justices had to say about it.

First, let me say that this whole blow up over copyright laws has
been very educational for me.  While both sides of the IBECC vs
Big Boy debate have been screaming back and forth, I snuck down
to the library and looked up what I could find on copyright law
as regards white pages type listings.  What I found was
enlightening.  I am amazed at how many people will take what
somebody says as rote law without looking it up themselves.
Remember, just because a lawyer told you so doesn't make it so.

For those of you tuning in late to the battle, a SYSOP by the
name of Big Boy copied a bunch of names and numbers of BBSes from
a list of BBSes that was published by a group called IBECC.
IBECC proceeded to threaten lawsuit if he didn't stop publishing
his list, because they had copyrights over the list they
published, and he could not use the numbers from it without their
permission.  He refused, and since then, people have been
slinging mud, yelling childishly (myself included there!) and
generally making theirselves look like giant asses.  

Getting tired of this childish display, I decided to look things
up for myself, and see what I could find.  Looking though the
University of Colorado Denver bookstore, I found a book entitled
"The Copyright Book."  I opened it and paged through it for a few
minutes and found a landmark case called "Feist Publications vs.
Rural Telephone Service Co."  This was a case heard by the
Supreme Court of the United States, with NO dissension by any
Justice, and 7 of the 8 writing it and the eighth (apparently on
vacation to the Bahamas that weeks) concurring.  This case is
available under US Supreme court listings as:  

(1991) 113 L Ed 2d 358

Please feel free to look it up if you doubt me.  It should be
available at any university library or any law library.

So, back to the program.  I'll quote from the decision, and add
my comments as we go along.

"Decision: Alphabetical listings of names, accompanied by towns
and telephone numbers, in the telephone book white pages held not
copyrightable; thus, nonconsensual copying of listings held not
to infringe on copyright."

Well, you don't need a psychic to see where this decision is
heading.  I haven't even gotten to any juicy bits and the
decision looks bad already.  Don't worry though, it gets worse.

"In a copyright infringement suit briught by the telephone
company against the publishing company, the US distric court for
the district of Kansas, explaining that courts had consistantly
held that telephone directories were copyrightable, granted
summary judgement to the telephone company.  The US court of
appeals for the tenth circuit, in an unpublished decision,
affirmed the District Court for substantially the same reasons."

Hey!  Maybe IBECC has a chance!  Well, it hadn't gotten to the
top yet.

"On certiorari, the US Supreme Court reversed"  "Then names,
towns, and telephone numbers listed in the white pages were not
protected by the telephone companies copyright, because the
listings were not original to the telephone company, since (a)
the listings, rather than owe their originality to the telephone
company, were uncopyrightable facts, and (b) the telephone
company has not selected, coordinated, or arranged these
uncopyrightable facts in any original way sufficient to satisfy
the minimum standards for copyright protection -- under either
the Federal Constitution's Article I, or under the Copyright Act
of 1976."

"This case requires us to clarify the extent of copyright
protection available to telephone directory white pages."

Basically, Rural Telservco provides the basic phone service, and
prints a white / yellow pages collection free of charge, making
their money on the yellow pages.  Feist Pubs. also makes a white
/ yellow pages book, also making their money off of the ads in
the yellow pages.  However, Feist is different in two ways.  (1)
it covers a much larger area, and (2) it has to pay the local
carriers, with whom it is in competition, for a list of the
numbers it needs to publish its white pages.

As you can guess, Feist was able to get the names and numbers
from all the phone companies but Rural.  So, they went ahead and
copied the white pages by scanning them in and checking what they 
could by phone.  Rural had inserted 4 "dummy" names to detect if
anyone had copied their list.

Back to the quoting!

"Rural sued for copyright infringement (...) taking the position
that Feist, in compiling its own directory, could not use the
information contained in Rural's white pages.  Rural asserted
that Feist employees were obliged to travel door to door or
conduct a telephone survey to discover the same information for
themselves."
"The District Court granted summary judgement to Rural,
explaining that 'courts have consistently held that telephone
directories are copyrightable.'"

The court of appeals upheld this decision also.

"This case concerns the interaction of two well-established
propositions.  The first is that facts are not copyrightable:
The other, that compilations of facts generally are.  Each of
these propositions possesses an impeccable pedigree.  That there
can be no valid copyright of facts is universally understood."

"There is an undeniable tension between these two propositions.
Many compilations consist of nothing but raw data

So, the real question is not whether the phone numbers and names
are copyrightable.  Right from the start we can see that the
Supreme Court is saying no they aren't.  The question is whether
the compilation is covered.  

"The key to resolving the tension lies in understanding why facts 
are not copyrightable.  The sine qua non of copyright is
originality. (...)  Original, sa the term used in copyright,
means only that the works was independently created by the
author, and that it possesses some minimal degree of creativity.
(...)  To be sure, the requisite level of creativity is low; even
a slight amount will suffice.  The vast majority of works make
the grade quite easily, as they possess some creative spark, no
matter how humble, crude, or obvious."

"Originality is a constitutional requirement.  The source of
Congress' power to enact copyright laws is article I of the
Constitution."

"Quoting a case: `No one may claim originality as to facts.'
This is because facts do not owe their origin to an act of
authorship.  The distinction is one between creatin and
discovery.  The first first person to find a particular fact has
not created the fact, but (...) merely discovered it."

"Census data (therefore) do not trigger copyright because these
data are not "original" in the constitutional sense.  The same is 
true of all facts -- scientific, historical, biographical, and
the news of the day.  They may not be copyrighted and are part of
the public domain available to every person."

"Factual compilations, on the other hand, may possess the
requisite originality.  The compilation author chooses which
facts to include, what order to place them in, and how to arrange 
the collected data so that it may be ued most effectively by the
readers.  These choices as to selection and arrangement, so long
as they are made independently by the compiler and entail a
minimal degree of creativity, are sufficiently original that
Congress may protect such compilations through the copyright
laws."

"This protection is subject to an important limitation.  The mere 
fact that a work is copyrighted does not mean that every element
of that work may be protected.  Originality remains the Sine qua
non of copyright; accordingly, copyright may extend only to those 
components of a work that are original to the author."

"No matter how original the format, however, the facts themselves 
do not become original through association."

"This inevitably means that the copyright in a factual
compilation is thin.  Notwithstanding a calid copyright, a
subsequent compiler remains free to use the facts contained in
another's publication to aid in preparing a competing work, so
long as the competing work does not feature the same selction and 
arrangement."

Now the above looks like IBECC has Big Boy, right?  After all, he 
listed the same phone numbers in basically the same format right?
Well, read on...

"Not all copying, however, is a copyright infringement. To
establish infringement, two elements must be proven: (1)
ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original.  The first element is not 
at issue herel Feist appears to concede that Rural's directory,
considered as a whole, is subject to a valid copyright because it 
contains some foreword text, as well as original content in its
yellow pages advertisements."

"The question is whether Rural has proved the second element.  In 
other words, did Feist, by taking 1,309 names, towns, and
telephone numbers from Rural's white pages, copy anything that
was "original" to Rural?  Certainly the raw data does not satisfy 
the originality requirement.  Rather these bits of information
are uncopyrightable facts; they existed before Rural reported
them and would have continued to exist if rural had never
published a telephone directory."

"The question that remains is whether Rural selected,
coordinated, or arranged these uncopyrightable facts in an
original way.  As mentioned, originality is not a stringent
standard; it does not require that facts be presented in an
innovative or surprising way.  It is equally true, however, that
the selection and arrangement of facts cannot be so mechanical or 
routine as to require no creativity whatsoever.  The standard of
originality is low, but it does exist.  As this court has
explained, the constitution mandates some minimal degree of
creativity."

So now the question becomes whether or not Big Boy, in using the
same basic, "name, number" format stole some truly creative work,
or just something that was so mechanically or mundanely put
together that it no longer qualifies for copyright at all.

"The selection, coordination, and arrangement of Rural's white
pages do not satisfy the minimum consitutional standards for
copyright protection.  as mentioned at the outset, Rural's white
pages are entirly typical." ...  "The end product if a
garden-variety white pages directory, devoid of even the
slightest trace of creativity.  Rural's selection of listings
could not be more obvious: it publishes the most basic
information -- name, town, and telephone number -- about each
person who applies for service.  This is 'selection' of a sort,
but it lacks the modicum of creativity necessary to transform
mere selection into copyrightable expression."

"Rural expended sufficient effort to make the white pages
directory, but insufficient creativity to make it original."

"Nor can Rural claim originality in its coordination and
arrangement of facts.  The white pages do nothing more than list
Rural's subscribers in alphabetical order.  This arrangement may, 
technically speaking, owe its origin to Rural; no one disputes
that Rural undertook the task of alphabetizing the names itself.
But there is nothingremotely creative about arranging names
alphabetically in a white pages directory.  It is an age-old
practice, firmly rooted in tradition and so commonplace that it
has come to be expected as a matter of course."

"As a constitutional matter, copyright protects only those
constituent elements of a work that possess more than a de
minimis quantum of creativity.  Rural's white pages, limited to
basic subscriber information, arranged alphabetically, fall short 
of the mark.  As a statutory matter, 17 USC sec 101 [17 USCS sec
101] does not afford protection from copying to a collection of
facts that are selected, coordinated, and arranged in a way that
utterly lacks originality.  Given that some works must fail, we
cannot imagine a more likely candidate.  Indeed, were we to hold
that Rural's white pages pass muster, it is hard to believe that
any collection of facts could fail."

"Because Rural's white pages lack the requisite originality,
Feist's use of the listings cannot constitute infringement.  This 
decision should not be construed as demeaning Rural's efforts in
compiling its directory, but rather as making clear that
copyright rewards originality, not effort.  As this court noted
more than a century ago: 'great praise may be due to the
plaintiffs for their industry and enterprise in publishing this
paper, yet the law does not contemplate their being rewarded in
this way."

"The judgement of the Court of Appeals is reversed."

Please note that 7 of the 8 justices authored this, and the 8th
concurred.  This is not a shady area to these folks, it is clear
as a bell.

.end