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

[80n]

On Sat, Mar 1, 2008 at 12:54 PM, John Wilbanks <wilbanks at creativecommons.org>
wrote:

>
> > 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.
>

I possibly didn't explain what I was being suggested very clearly.

Ignore all the facts and focus please on just the non-factual, creative
easter eggs.  Suppose someone creates a series of fake streets with fake
names (suppose that they all rhyme, just to make sure that they pass muster
as creative elements - although the criteria is generally considered to be
very low).  If this collection of rhyming fake names is published then it
will be copyrightable.

If this collection is published along with 5 million other real facts then
does this make the rhyming fake names any less copyrightable?  If someone
copies the collection of rhyming fake names + 5 million facts then unless
they remove the rhyming fake names then in what way can they avoid
infringing the original authors copyright?




>
> 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).


Agreed, Feist v Rural is irrelevant here.  The fake entries were just used
for copy detection, they played no part in the case.


> 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.
>

No it didn't.  The fake entries were just used for copy detection, they
played no part in the case.


>
> In other words, adding fake facts to a listing of facts doesn't matter
> in terms of copyright.


This was not determined by Feist v Rural.  This case rested on the
arrangement and effort.  The presence of fake facts was not considered, and
you cannot use the ruling from this case to make statements like this.


> 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.


The Easter Egg issue was not even raised as part of the case.


>
>
>  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.


I don't think anyone is very concerned about protecting the GPS traces - its
the geo-data derived from these traces that is the important and valuable
data.

If that's what you asked a bunch of Lawyers then you were probably asking
the wrong question and almost certainly got the answer that they thought you
wanted.


> 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.
>

Is this the criteria for something to be a fact?  If the same result is
achieved each time it is measured?  On that basis much of OSM's geo-data is
probably not factual.  Do you have a reference to any case law that has
determined this as the criteria for something to be a fact?

80n


>
>
> 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.
>
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> http://lists.openstreetmap.org/cgi-bin/mailman/listinfo/legal-talk
>
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