Assignment #5

I. The Agenda

Our aim in this next block of material and discussion is to carry our analysis of the "difference of digital" in a different direction -- one defined more by the content than the specific electronic environment. In our prior work we have largely assumed that copyright law applied, now the question becomes, at least in part: Does it?

The general heading under which this exploration fits is "specific types of works or roles" beginning with "databases containing factual or public domain works." Since electronic databases of legal opinions (public domain works) have been part of law practice and legal education for over two decades raw material for our analysis lies all around us. But the opportunities to reach new markets or users on the one hand and the insatiable hunger for material to distribute via digital means on the other have brought a broad new urgency to the legal issues surrounding this week's topic.

Among those issues are these:

• What is in the public domain and how can public domain status be verified?
• The line separating fact and idea from expression and the creativity threshold
• Works for which copyright has expired
• Government works
• Other?
• If an "electronic publisher" using the Net, CD-ROM, or both wants to build on public domain material how can public domain material be safely separated from copyrightable elements with which some other publisher has intermixed it?
• Is separation more risky if the source material is digital (rather than in print)?
• If an "electronic publisher" using the Net, CD-ROM, or both wants to build on public domain material (acquired without infringement) what techniques can be used to maximize copyright or other legal protection of the resulting product or service?

II. Readings

Copyright Act --

• Identify and review the Act's provisions that bear on the above questions.
• Review the White Paper's gloss on the statute on these points (and the copyright casebook or treatise of your choice).

Several Cases --

Key to this week's exploration of works principally containing facts or other public domain material is the Supreme Court's decision in Feist Publishing v. Rural Telephone Service Co., 499 U.S. 340 (1991) LEXIS | WESTLAW. Since Feist is in every Copyright casebook, I'm assuming most of you have read it already and need only refresh your recollection..

There are four post-Feist cases I want you to read, knowing that for many this, too, will be review:

• NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997) LEXIS | WESTLAW
• ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) LEXIS | WESTLAW
• CCC Information Services v. MacLean Hunger Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994) LEXIS | WESTLAW
• Matthew Bender v. West, 94-CV-589, May 19, 1997 (LJ Extra)

A Chart -- Determining when works have "fallen out" of copyright by virtue of age requires that one know what the Act's duration provisions have been over time, not just what they are at present. A very useful chart on the matter prepared by Prof. Laura N. Gasaway is available on the Net (with copyright notice and an explicit license covering uses like these) (click here).

Journal Articles -- Feist and related issue of database protection have generated numerous law journal articles. I'm not assigning any of them but would point those who want more background toward Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 Colum. L. Rev. 338 (1992) LEXIS | WESTLAW.

Last and not least -- Find and read the terms and conditions that govern access to at least one electronic product or service (WESTLAW, LEXIS, a law CD-ROM, or website).

III. How We'll Proceed

Through the period leading up to our next video conference session on Oct 6, I'll lead a discussion on these issues in our Webboard conference.