[OSM-legal-talk] legal-talk Digest, Vol 19, Issue 1

[John Wilbanks]

> This case doesn't seem remotely relevant to the question of Easter-eggs.  It
> rests on originality of the arrangement of facts.  In what way does it have
> anything to do with this question?
> 
> 80n
> 

The Feist case rested on the fact that false entries were placed in a 
phone book as a discovery method, and that the phone book might be 
copyrightable. It was not found to be copyrightable.

Listings of peoples' addresses are listings of facts, just as listings 
of GPS traces are listings of facts. Adding fake ones doesn't make that 
a creative work. The case - and other similar cases - don't even pivot 
on the addition of fake listings to make the database a creative work, 
but rather on the arrangement of facts and the effort required to make a 
database (as you note). In the US these things don't make a difference 
but in the EU and the UK and Australia, they *may* make a difference, 
but it varies by the country of jurisdiction. But the case directly 
considered the addition of easter eggs and found that a data listing 
with easter eggs was uncopyrightable.

In other words, adding fake facts to a listing of facts doesn't matter 
in terms of copyright. What matters is arrangement and effort, and those 
two only matter in come jurisdictions. Thus, the Easter Egg issue is 
considered irrelevant to the decision, and thus is deeply unlikely to be 
considered an issue in deciding whether or not a database is subject to 
copyright.

 From the lawyer's perspective (not mine, but unanimous of those I 
interviewed about this) there is no difference between a database of 
facts in phone books, genes, or GPS traces. The content of the facts is 
irrelevant - what matters is that the facts could be re-measured again 
and again by anyone to get the same results. That means all phone 
listings will be the same, all our gps traces, all our genomes, etc. 
That means no creative expression. Including some fake stuff to catch 
copiers hasn't been held to transform those collections into creative 
works - the transformation, if it is held to happen, is instead found in 
the arrangement.


jtw

ps - Those of you interested in copyleft and freedom might want to 
interview Stallman on this issue as well. He lives down the hall from 
our offices and has interesting opinions on the topic of how often one 
should use licenses to achieve one's goals, and what impacts one should 
enable.