On 28 Feb 2006 14:27:18 GMT, Lloyd wrote:
On 28 Feb 2006 06:06:12 -0800, N9OGL wrote:
I beg to differ, the courts have ruled a number of times that data, is
not copyrightable. One case comes to mine had to do with a phone book a
telephone company had put out and another company copied it from word
to word and the phone company sued for copyright violation and the
supreme court ruled that general data, no matter how you write it is
not copyrightable.

(*shrug*)

Tables of numbers do not constitute prose. What you ripped off does.
Try to reproduce a college text and distribute it, and see how long
it takes you to be hauled into court by its publisher.

Tood thinks he's Clarence Darrow.

Problem is, he's really Richard Simmons.

AND YOUR SOME FAT COLOR GUY NAME BUTCH, LITTLE BITCH!!!

On 28 Feb 2006 06:40:11 -0800, N9OGL wrote:
As I stated before, The courts have ruled that no matter if one person
wrote it or someone else did; the out come of the information would be
the same, and data is not copyrightable. Copyrights are there to
protect creativity, and for something to be protected under copyright
law it has to be ORGINAL, and copyright law doesn't protect the idea,
but they way the idea is expressed. fact and Information are not
copyrightable, even it this information was copyrightable,which it
isn't, it would fall into public domain because electromagnetic
radiation (waves) has been around since the 1800's and anything before
1923 is not copyrightable, and is consider, public domain.

To quote from the ruling "... is copyrightable only if its facts have
been 'selected, coordinated, or arranged in such a way that the
resulting work as a whole constitutes an original work of authorship.'"

[From http://www.techlawjournal.com/cong10...0327feist.htm]

That's why a physics text *is* copyrightable. It's also why an
explanation of electromagnetic radiation is *also* copyrightable.

Sorry, Tood. You're interpretation is seriously flawed.

P.S. Electromagnetic radiation has been around since the beginning of
the universe. It is only mankind's understanding of it which is
relatively recent.



----
God said, "div D = rho, div B = 0, curl E = -@B/@t, curl H = J + @D/@t,"
and then there was light.

Lloyd wrote:


That's why a physics text *is* copyrightable. It's also why an
explanation of electromagnetic radiation is *also* copyrightable.

Sorry, Tood. You're interpretation is seriously flawed.
so is your evidence

The Opinion of the Court



O'CONNOR J., delivered the opinion of the Court, in which REHNQUIST,
C.J., and WHITE, MARSHALL, STEVENS, SCALIA, KENNEDY, and SOUTER, JJ.,
joined. BLACKMUN, J., concurred in the judgment.

Kyler Knobbe, Cimarron, Kan., for petitioner. James M. Caplinger, Jr.,
Topeka, Kan., for respondent.

Justice O'CONNOR delivered the opinion of the Court.

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

I.

Rural Telephone Service Company, Inc., is a certified public utility
that provides telephone service to several communities in northwest
Kansas. It is subject to a state regulation that requires all telephone
companies operating in Kansas to issue annually an updated telephone
directory. Accordingly, as a condition of its monopoly franchise, Rural
publishes a typical telephone directory, consisting of white pages and
yellow pages. The white pages list in alphabetical order the names of
Rural's subscribers, together with their towns and telephone numbers.
The yellow pages list Rural's business subscribers alphabetically by
category and feature classified advertisements of various sizes. Rural
distributes its directory free of charge to its subscribers, but earns
revenue by selling yellow pages advertisements.

Feist Publications, Inc., is a publishing company that specializes in
area- wide telephone directories. Unlike a typical directory, which
covers only a particular calling area, Feist's area-wide directories
cover a much larger geographical range, reducing the need to call
directory assistance or consult multiple directories. The Feist
directory that is the subject of this litigation covers 11 different
telephone service areas in 15 counties and contains 46,878 white pages
listings--compared to Rural's approximately 7,700 listings. Like
Rural's directory, Feist's is distributed free of charge and includes
both white pages and yellow pages. Feist and Rural compete vigorously
for yellow pages advertising.

As the sole provider of telephone service in its service area, Rural
obtains subscriber information quite easily. Persons desiring telephone
service must apply to Rural and provide their names and addresses;
Rural then assigns them a telephone number. Feist is not a telephone
company, let alone one with monopoly status, and therefore lacks
independent access to any subscriber information. To obtain white pages
listings for its area-wide directory, Feist approached each of the 11
telephone companies operating in northwest Kansas and offered to pay
for the right to use its white pages listings.

Of the 11 telephone companies, only Rural refused to license its
listings to Feist. Rural's refusal created a problem for Feist, as
omitting these listings would have left a gaping hole in its area-wide
directory, rendering it less attractive to potential yellow pages
advertisers. In a decision subsequent to that which we review here, the
District Court determined that this was precisely the reason Rural
refused to license its listings. The refusal was motivated by an
unlawful purpose "to extend its monopoly in telephone service to a
monopoly in yellow pages advertising." Rural Telephone Service Co. v.
Feist Publications, Inc., 737 F.Supp. 610, 622 (Kan.1990).

Unable to license Rural's white pages listings, Feist used them without
Rural's consent. Feist began by removing several thousand listings that
fell outside the geographic range of its area-wide directory, then
hired personnel to investigate the 4,935 that remained. These employees
verified the data reported by Rural and sought to obtain additional
information. As a result, a typical Feist listing includes the
individual's street address; most of Rural's listings do not.
Notwithstanding these additions, however, 1,309 of the 46,878 listings
in Feist's 1983 directory were identical to listings in Rural's
1982-1983 white pages. App. 54 (P 15-16), 57. Four of these were
fictitious listings that Rural had inserted into its directory to
detect copying.

Rural sued for copyright infringement in the District Court for the
District of Kansas 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's employees were obliged to travel
door-to-door or conduct a telephone survey to discover the same
information for themselves. Feist responded that such efforts were
economically impractical and, in any event, unnecessary because the
information copied was beyond the scope of copyright protection. The
District Court granted summary judgment to Rural, explaining that
"[c]ourts have consistently held that telephone directories are
copyrightable" and citing a string of lower court decisions. 663
F.Supp. 214, 218 (1987). In an unpublished opinion, the Court of
Appeals for the Tenth Circuit affirmed "for substantially the reasons
given by the district court." App. to Pet. for Cert. 4a, judgt. order
reported at 916 F.2d 718 (1990). We granted certiorari, 498 U.S. 808,
111 S.Ct. 40, 112 L.Ed.2d 17 (1990), to determine whether the copyright
in Rural's directory protects the names, towns, and telephone numbers
copied by Feist.

II.

A.

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
in facts is universally understood. The most fundamental axiom of
copyright law is that "[n]o author may copyright his ideas or the facts
he narrates." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471
U.S. 539, 556, 105 S.Ct. 2218, 2228, 85 L.Ed.2d 588 (1985). Rural
wisely concedes this point, noting in its brief that "[f]acts and
discoveries, of course, are not themselves subject to copyright
protection." Brief for Respondent 24. At the same time, however, it is
beyond dispute that compilations of facts are within the subject matter
of copyright. Compilations were expressly mentioned in the Copyright
Act of 1909, and again in the Copyright Act of 1976.

There is an undeniable tension between these two propositions. Many
compilations consist of nothing but raw data--i.e., wholly factual
information not accompanied by any original written expression. On what
basis may one claim a copyright in such a work? Common sense tells us
that 100 uncopyrightable facts do not magically change their status
when gathered together in one place. Yet copyright law seems to
contemplate that compilations that consist exclusively of facts are
potentially within its scope.

The key to resolving the tension lies in understanding why facts are
not copyrightable. The sine qua non of copyright is originality. To
qualify for copyright protection, a work must be original to the
author. See: Harper & Row, supra, at 547-549, 105 S.Ct., at 2223-2224.
Original, as the term is used in copyright, means only that the work
was independently created by the author (as opposed to copied from
other works), and that it possesses at least some minimal degree of
creativity. 1 M. Nimmer & D. Nimmer, Copyright ss 2.01[A], [b] (1990)
(hereinafter Nimmer). To be sure, the requisite level of creativity is
extremely 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 crude, humble or obvious" it might be. Id., s 1.08[C]
[1]. Originality does not signify novelty; a work may be original even
though it closely resembles other works so long as the similarity is
fortuitous, not the result of copying. To illustrate, assume that two
poets, each ignorant of the other, compose identical poems. Neither
work is novel, yet both are original and, hence, copyrightable. See:
Sheldon v. Metro- Goldwyn Pictures Corp., 81 F.2d 49, 54 (CA2 1936).

Originality is a constitutional requirement. The source of Congress'
power to enact copyright laws is Article I, s 8, cl. 8, of the
Constitution, which authorizes Congress to "secur[e] for limited Times
to Authors ... the exclusive Right to their respective Writings." In
two decisions from the late 19th century-- The Trade-Mark Cases, 100
U.S. 82, 25 L.Ed. 550 (1879); and Burrow-Giles Lithographic Co. v.
Sarony, 111 U.S. 53, 4 S.Ct. 279, 28 L.Ed. 349 (1884)--this Court
defined the crucial terms "authors" and "writings." In so doing, the
Court made it unmistakably clear that these terms presuppose a degree
of originality.

In The Trade-Mark Cases, the Court addressed the constitutional scope
of "writings." For a particular work to be classified "under the head
of writings of authors," the Court determined, "originality is
required." 100 U.S., at 94. The Court explained that originality
requires independent creation plus a modicum of creativity: "[W]hile
the word writings may be liberally construed, as it has been, to
include original designs for engraving, prints, it is only such as are
original, and are founded in the creative powers of the mind. The
writings which are to be protected are the fruits of intellectual
labor, embodied in the form of books, prints, engravings, and the
like." Ibid.

In Burrow-Giles, the Court distilled the same requirement from the
Constitution's use of the word "authors." The Court defined "author,"
in a constitutional sense, to mean "he to whom anything owes its
origin; originator; maker." 111 U.S., at 58, 4 S.Ct., at 281 (internal
quotation marks omitted). As in The Trade-Mark Cases, the Court
emphasized the creative component of originality. It described
copyright as being limited to "original intellectual conceptions of the
author," 111 U.S., at 58, 4 S.Ct., at 281, and stressed the importance
of requiring an author who accuses another of infringement to prove
"the existence of those facts of originality, of intellectual
production, of thought, and conception." Id., at 59-60, 4 S.Ct., at
281-282.

The originality requirement articulated in The Trade-Mark Cases and
Burrow-Giles remains the touchstone of copyright protection today. See:
Goldstein v. California, 412 U.S. 546, 561-562, 93 S.Ct. 2303, 2312, 37
L.Ed.2d 163 (1973). It is the very "premise of copyright law." Miller
v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (CA5 1981).
Leading scholars agree on this point. As one pair of commentators
succinctly puts it: "The originality requirement is constitutionally
mandated for all works." Patterson & Joyce, Monopolizing the Law: The
Scope of Copyright Protection for Law Reports and Statutory
Compilations, 36 UCLA L.Rev. 719, 763, n. 155 (1989) (hereinafter
Patterson & Joyce). Accord, id., at 759-760, and n. 140; Nimmer s
1.06[A] ("[O]riginality is a statutory as well as a constitutional
requirement"); id., s 1.08[C][1] ("[A] modicum of intellectual labor
.... clearly constitutes an essential constitutional element").

It is this bedrock principle of copyright that mandates the law's
seemingly disparate treatment of facts and factual compilations. "No
one may claim originality as to facts." Id., s 2.11[A], p. 2-157. This
is because facts do not owe their origin to an act of authorship. The
distinction is one between creation and discovery: The first person to
find and report a particular fact has not created the fact; he or she
has merely discovered its existence. To borrow from Burrow-Giles, one
who discovers a fact is not its "maker" or "originator." 111 U.S., at
58, 4 S.Ct., at 281. "The discoverer merely finds and records." Nimmer
s 2.03[E]. Census takers, for example, do not "create" the population
figures that emerge from their efforts; in a sense, they copy these
figures from the world around them. Denicola, Copyright in Collections
of Facts: A Theory for the Protection of Nonfiction Literary Works, 81
Colum.L.Rev. 516, 525 (1981) (hereinafter Denicola). Census data
therefore do not trigger copyright because these data are not
"original" in the constitutional sense. Nimmer s 2.03[E]. The same is
true of all facts--scientific, historical, biographical, and news of
the day. "[T]hey may not be copyrighted and are part of the public
domain available to every person." Miller, supra, at 1369.

Factual compilations, on the other hand, may possess the requisite
originality. The compilation author typically chooses which facts to
include, in what order to place them, and how to arrange the collected
data so that they may be used effectively by 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. Nimmer ss 2.11[D], 3.03; Denicola 523, n.
38. Thus, even a directory that contains absolutely no protectible
written expression, only facts, meets the constitutional minimum for
copyright protection if it features an original selection or
arrangement. See: Harper & Row, 471 U.S., at 547, 105 S.Ct., at 2223.
Accord, Nimmer s 3.03.

This protection is subject to an important limitation. The mere fact
that a work is copyrighted does not mean that every element of the work
may be protected. Originality remains the sine qua non of copyright;
accordingly, copyright protection may extend only to those components
of a work that are original to the author. Patterson & Joyce 800-802;
Ginsburg, Creation and Commercial Value: Copyright Protection of Works
of Information, 90 Colum.L.Rev. 1865, 1868, and n. 12 (1990)
(hereinafter Ginsburg). Thus, if the compilation author clothes facts
with an original collocation of words, he or she may be able to claim a
copyright in this written expression. Others may copy the underlying
facts from the publication, but not the precise words used to present
them. In Harper & Row, for example, we explained that President Ford
could not prevent others from copying bare historical facts from his
autobiography, see: 471 U.S., at 556-557, 105 S.Ct., at 2228-2229, but
that he could prevent others from copying his "subjective descriptions
and portraits of public figures." Id., at 563, 105 S.Ct., at 2232.
Where the compilation author adds no written expression but rather lets
the facts speak for themselves, the expressive element is more elusive.
The only conceivable expression is the manner in which the compiler has
selected and arranged the facts. Thus, if the selection and arrangement
are original, these elements of the work are eligible for copyright
protection. See Patry, Copyright in Compilations of Facts (or Why the
"White Pages" Are Not Copyrightable), 12 Com. & Law 37, 64 (Dec. 1990)
(hereinafter Patry). No matter how original the format, however, the
facts themselves do not become original through association. See
Patterson & Joyce 776.

This inevitably means that the copyright in a factual compilation is
thin. Notwithstanding a valid 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 selection and arrangement. As one commentator explains
it: "[N]o matter how much original authorship the work displays, the
facts and ideas it exposes are free for the taking.... [T]he very same
facts and ideas may be divorced from the context imposed by the author,
and restated or reshuffled by second comers, even if the author was the
first to discover the facts or to propose the ideas." Ginsburg 1868.

It may seem unfair that much of the fruit of the compiler's labor may
be used by others without compensation. As Justice Brennan has
correctly observed, however, this is not "some unforeseen byproduct of
a statutory scheme." Harper & Row, 471 U.S., at 589, 105 S.Ct., at 2245
(dissenting opinion). It is, rather, "the essence of copyright," ibid.,
and a constitutional requirement. The primary objective of copyright is
not to reward the labor of authors, but "[t]o promote the Progress of
Science and useful Arts." Art. I, s 8, cl. 8. Accord, Twentieth Century
Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45
L.Ed.2d 84 (1975). To this end, copyright assures authors the right to
their original expression, but encourages others to build freely upon
the ideas and information conveyed by a work. Harper & Row, supra, 471
U.S., at 556-557, 105 S.Ct., at 2228- 2229. This principle, known as
the idea/expression or fact/expression dichotomy, applies to all works
of authorship. As applied to a factual compilation, assuming the
absence of original written expression, only the compiler's selection
and arrangement may be protected; the raw facts may be copied at will.
This result is neither unfair nor unfortunate. It is the means by which
copyright advances the progress of science and art.

This Court has long recognized that the fact/expression dichotomy
limits severely the scope of protection in fact-based works. More than
a century ago, the Court observed: "The very object of publishing a
book on science or the useful arts is to communicate to the world the
useful knowledge which it contains. But this object would be frustrated
if the knowledge could not be used without incurring the guilt of
piracy of the book." Baker v. Selden, 101 U.S. 99, 103, 25 L.Ed. 841
(1880). We reiterated this point in Harper & Row:

"[N]o author may copyright facts or ideas. The copyright is limited to
those aspects of the work--termed 'expression'--that display the stamp
of the author's originality.

"[C]opyright does not prevent subsequent users from copying from a
prior author's work those constituent elements that are not
original--for example ... facts, or materials in the public domain--as
long as such use does not unfairly appropriate the author's original
contributions." 471 U.S., at 547-548, 105 S.Ct., at 2223-2224 (citation
omitted).

This, then, resolves the doctrinal tension: Copyright treats facts and
factual compilations in a wholly consistent manner. Facts, whether
alone or as part of a compilation, are not original and therefore may
not be copyrighted. A factual compilation is eligible for copyright if
it features an original selection or arrangement of facts, but the
copyright is limited to the particular selection or arrangement. In no
event may copyright extend to the facts themselves.

B.

As we have explained, originality is a constitutionally mandated
prerequisite for copyright protection. The Court's decisions announcing
this rule predate the Copyright Act of 1909, but ambiguous language in
the 1909 Act caused some lower courts temporarily to lose sight of this
requirement.

The 1909 Act embodied the originality requirement, but not as clearly
as it might have. See Nimmer s 2.01. The subject matter of copyright
was set out in ss 3 and 4 of the Act. Section 4 stated that copyright
was available to "all the writings of an author." 35 Stat. 1076. By
using the words "writings" and "author" -- the same words used in
Article I, s 8, of the Constitution and defined by the Court in The
Trade-Mark Cases and Burrow- Giles -- the statute necessarily
incorporated the originality requirement articulated in the Court's
decisions. It did so implicitly, however, thereby leaving room for
error.

Section 3 was similarly ambiguous. It stated that the copyright in a
work protected only "the copyrightable component parts of the work." It
thus stated an important copyright principle, but failed to identify
the specific characteristic--originality--that determined which
component parts of a work were copyrightable and which were not.

Most courts construed the 1909 Act correctly, notwithstanding the
less-than- perfect statutory language. They understood from this
Court's decisions that there could be no copyright without originality.
See Patterson & Joyce 760- 761. As explained in the Nimmer treatise:
"The 1909 Act neither defined originality, nor even expressly required
that a work be 'original' in order to command protection. However, the
courts uniformly inferred the requirement from the fact that copyright
protection may only be claimed by 'authors'.... It was reasoned that
since an author is 'the ... creator, originator' it follows that a work
is not the product of an author unless the work is original." Nimmer s
2.01 (footnotes omitted) (citing cases).

But some courts misunderstood the statute. See, e.g., Leon v. Pacific
Telephone & Telegraph Co., 91 F.2d 484 (CA9 1937); Jeweler's Circular
Publishing Co. v. Keystone Publishing Co., 281 F. 83 (CA2 1922). These
courts ignored ss 3 and 4, focusing their attention instead on s 5 of
the Act. Section 5, however, was purely technical in natu It
provided that a person seeking to register a work should indicate on
the application the type of work, and it listed 14 categories under
which the work might fall. One of these categories was "[b]ooks,
including composite and cyclopaedic works, directories, gazetteers, and
other compilations." s 5(a). Section 5 did not purport to say that all
compilations were automatically copyrightable. Indeed, it expressly
disclaimed any such function, pointing out that "the subject- matter of
copyright [i]s defined in section four." Nevertheless, the fact that
factual compilations were mentioned specifically in s 5 led some courts
to infer erroneously that directories and the like were copyrightable
per se, "without any further or precise showing of
original--personal--authorship." Ginsburg 1895.

Making matters worse, these courts developed a new theory to justify
the protection of factual compilations. Known alternatively as "sweat
of the brow" or "industrious collection," the underlying notion was
that copyright was a reward for the hard work that went into compiling
facts. The classic formulation of the doctrine appeared in Jeweler's
Circular Publishing Co., 281 F., at 88:

"The right to copyright a book upon which one has expended labor in its
preparation does not depend upon whether the materials which he has
collected consist or not of matters which are publici juris, or whether
such materials show literary skill or originality, either in thought or
in language, or anything more than industrious collection. The man who
goes through the streets of a town and puts down the names of each of
the inhabitants, with their occupations and their street number,
acquires material of which he is the author."

The "sweat of the brow" doctrine had numerous flaws, the most glaring
being that it extended copyright protection in a compilation beyond
selection and arrangement--the compiler's original contributions--to
the facts themselves. Under the doctrine, the only defense to
infringement was independent creation. A subsequent compiler was "not
entitled to take one word of information previously published," but
rather had to "independently wor[k] out the matter for himself, so as
to arrive at the same result from the same common sources of
information." Id., at 88-89 (internal quotations omitted). "Sweat of
the brow" courts thereby eschewed the most fundamental axiom of
copyright law--that no one may copyright facts or ideas. See Miller v.
Universal City Studios, Inc., 650 F.2d, at 1372 (criticizing "sweat of
the brow" courts because "ensur [ing] that later writers obtain the
facts independently ... is precisely the scope of protection given ...
copyrighted matter, and the law is clear that facts are not entitled to
such protection"). Decisions of this Court applying the 1909 Act make
clear that the statute did not permit the "sweat of the brow" approach.
The best example is International News Service v. Associated Press, 248
U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918). In that decision, the Court
stated unambiguously that the 1909 Act conferred copyright protection
only on those elements of a work that were original to the author.
International News Service had conceded taking news reported by
Associated Press and publishing it in its own newspapers. Recognizing
that s 5 of the Act specifically mentioned " 'periodicals, including
newspapers,' " s 5(b), the Court acknowledged that news articles were
copyrightable. Id., at 234, 39 S.Ct., at 70. It flatly rejected,
however, the notion that the copyright in an article extended to the
factual information it contained: "[T]he news element--the information
respecting current events contained in the literary production--is not
the creation of the writer, but is a report of matters that ordinarily
are publici juris; it is the history of the day." Ibid. (FootNote:
The Court ultimately rendered judgment for Associated Press on
noncopyright grounds that are not relevant here. See 248 U.S., at 235,
241-242, 39 S.Ct., at 71, 73-74.)

Without a doubt, the "sweat of the brow" doctrine flouted basic
copyright principles. Throughout history, copyright law has
"recognize[d] a greater need to disseminate factual works than works of
fiction or fantasy." Harper & Row, 471 U.S., at 563, 105 S.Ct., at
2232. Accord, Gorman, Fact or Fancy: The Implications for Copyright, 29
J. Copyright Soc. 560, 563 (1982). But "sweat of the brow" courts took
a contrary view; they handed out proprietary interests in facts and
declared that authors are absolutely precluded from saving time and
effort by relying upon the facts contained in prior works. In truth,
"[i]t is just such wasted effort that the proscription against the
copyright of ideas and facts ... [is] designed to prevent." Rosemont
Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966),
cert. denied 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967).
"Protection for the fruits of such research ... may in certain
circumstances be available under a theory of unfair competition. But to
accord copyright protection on this basis alone distorts basic
copyright principles in that it creates a monopoly in public domain
materials without the necessary justification of protecting and
encouraging the creation of 'writings' by 'authors.' " Nimmer s 3.04,
p. 3-23 (footnote omitted).

C.

"Sweat of the brow" decisions did not escape the attention of the
Copyright Office. When Congress decided to overhaul the copyright
statute and asked the Copyright Office to study existing problems, see
Mills Music, Inc. v. Snyder, 469 U.S. 153, 159, 105 S.Ct. 638, 642, 83
L.Ed.2d 556 (1985), the Copyright Office promptly recommended that
Congress clear up the confusion in the lower courts as to the basic
standards of copyrightability. The Register of Copyrights explained in
his first report to Congress that "originality" was a "basic
requisit[e]" of copyright under the 1909 Act, but that "the absence of
any reference to [originality] in the statute seems to have led to
misconceptions as to what is copyrightable matter." Report of the
Register of Copyrights on the General Revision of the U.S. Copyright
Law, 87th Cong., 1st Sess., p. 9 (H. Judiciary Comm. Print 1961). The
Register suggested making the originality requirement explicit. Ibid.

Congress took the Register's advice. In enacting the Copyright Act of
1976, Congress dropped the reference to "all the writings of an author"
and replaced it with the phrase "original works of authorship." 17
U.S.C. s 102(a). In making explicit the originality requirement,
Congress announced that it was merely clarifying existing law: "The two
fundamental criteria of copyright protection [are] originality and
fixation in tangible form.... The phrase 'original works of
authorship,' which is purposely left undefined, is intended to
incorporate without change the standard of originality established by
the courts under the present [1909] copyright statute." H.R.Rep. No.
94-1476, p. 51 (1976) (emphasis added) (hereinafter H.R.Rep.); S.Rep.
No. 94-473, p. 50 (1975), U.S.Code Cong. & Admin.News 1976, pp. 5659,
5664 (emphasis added) (hereinafter S.Rep.). This sentiment was echoed
by the Copyright Office: "Our intention here is to maintain the
established standards of originality...." Supplementary Report of the
Register of Copyrights on the General Revision of U.S. Copyright Law,
89th Cong., 1st Sess., pt. 6, p. 3 (H. Judiciary Comm. Print 1965)
(emphasis added).

To ensure that the mistakes of the "sweat of the brow" courts would not
be repeated, Congress took additional measures. For example, s 3 of the
1909 Act had stated that copyright protected only the "copyrightable
component parts" of a work, but had not identified originality as the
basis for distinguishing those component parts that were copyrightable
from those that were not. The 1976 Act deleted this section and
replaced it with s 102(b), which identifies specifically those elements
of a work for which copyright is not available: "In no case does
copyright protection for an original work of authorship extend to any
idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work." Section
102(b) is universally understood to prohibit any copyright in facts.
Harper & Row, supra, at 547, 556, 105 S.Ct., at 2223, 2228. Accord,
Nimmer s 2.03[E] (equating facts with "discoveries"). As with s 102(a),
Congress emphasized that s 102(b) did not change the law, but merely
clarified it: "Section 102(b) in no way enlarges or contracts the scope
of copyright protection under the present law. Its purpose is to
restate ... that the basic dichotomy between expression and idea
remains unchanged." H.R.Rep., at 57; S.Rep., at 54, U.S.Code Cong. &
Admin.News 1976, p. 5670.

Congress took another step to minimize confusion by deleting the
specific mention of "directories ... and other compilations" in s 5 of
the 1909 Act. As mentioned, this section had led some courts to
conclude that directories were copyrightable per se and that every
element of a directory was protected. In its place, Congress enacted
two new provisions. First, to make clear that compilations were not
copyrightable per se, Congress provided a definition of the term
"compilation." Second, to make clear that the copyright in a
compilation did not extend to the facts themselves, Congress enacted s
103.

The definition of "compilation" is found in s 101 of the 1976 Act. It
defines a "compilation" in the copyright sense as "a work formed by the
collection and assembling of preexisting materials or of data that are
selected, coordinated, or arranged in such a way that the resulting
work as a whole constitutes an original work of authorship" (emphasis
added).

The purpose of the statutory definition is to emphasize that
collections of facts are not copyrightable per se. It conveys this
message through its tripartite structure, as emphasized above by the
italics. The statute identifies three distinct elements and requires
each to be met for a work to qualify as a copyrightable compilation:
(1) the collection and assembly of pre-existing material, facts, or
data; (2) the selection, coordination, or arrangement of those
materials; and (3) the creation, by virtue of the particular selection,
coordination, or arrangement, of an "original" work of authorship.
"[T]his tripartite conjunctive structure is self-evident, and should be
assumed to 'accurately express the legislative purpose.' " Patry 51,
quoting Mills Music, 469 U.S., at 164, 105 S.Ct., at 645.

At first glance, the first requirement does not seem to tell us much.
It merely describes what one normally thinks of as a compilation -- a
collection of pre-existing material, facts, or data. What makes it
significant is that it is not the sole requirement. It is not enough
for copyright purposes that an author collects and assembles facts. To
satisfy the statutory definition, the work must get over two additional
hurdles. In this way, the plain language indicates that not every
collection of facts receives copyright protection. Otherwise, there
would be a period after "data."

The third requirement is also illuminating. It emphasizes that a
compilation, like any other work, is copyrightable only if it satisfies
the originality requirement ("an original work of authorship").
Although s 102 states plainly that the originality requirement applies
to all works, the point was emphasized with regard to compilations to
ensure that courts would not repeat the mistake of the "sweat of the
brow" courts by concluding that fact-based works are treated
differently and measured by some other standard. As Congress explained
it, the goal was to "make plain that the criteria of copyrightable
subject matter stated in section 102 apply with full force to works ...
containing preexisting material." H.R.Rep., at 57; S.Rep., at 55,
U.S.Code Cong. & Admin.News 1976, p. 5670.

The key to the statutory definition is the second requirement. It
instructs courts that, in determining whether a fact-based work is an
original work of authorship, they should focus on the manner in which
the collected facts have been selected, coordinated, and arranged. This
is a straightforward application of the originality requirement. Facts
are never original, so the compilation author can claim originality, if
at all, only in the way the facts are presented. To that end, the
statute dictates that the principal focus should be on whether the
selection, coordination, and arrangement are sufficiently original to
merit protection.

Not every selection, coordination, or arrangement will pass muster.
This is plain from the statute. It states that, to merit protection,
the facts must be selected, coordinated, or arranged "in such a way" as
to render the work as a whole original. This implies that some "ways"
will trigger copyright, but that others will not. See Patry 57, and n.
76. Otherwise, the phrase "in such a way" is meaningless and Congress
should have defined "compilation" simply as "a work formed by the
collection and assembly of preexisting materials or data that are
selected, coordinated, or arranged." That Congress did not do so is
dispositive. In accordance with "the established principle that a court
should give effect, if possible, to every clause and word of a
statute," Moskal v. United States, 498 U.S. 103, 109- 110, 111 S.Ct.
461, 466, 112 L.Ed.2d 449 (1990) (internal quotation marks omitted), we
conclude that the statute envisions that there will be some fact- based
works in which the selection, coordination, and arrangement are not
sufficiently original to trigger copyright protection.

As discussed earlier, however, the originality requirement is not
particularly stringent. A compiler may settle upon a selection or
arrangement that others have used; novelty is not required. Originality
requires only that the author make the selection or arrangement
independently (i.e., without copying that selection or arrangement from
another work), and that it display some minimal level of creativity.
Presumably, the vast majority of compilations will pass this test, but
not all will. There remains a narrow category of works in which the
creative spark is utterly lacking or so trivial as to be virtually
nonexistent. See generally Bleistein v. Donaldson Lithographing Co.,
188 U.S. 239, 251, 23 S.Ct. 298, 300, 47 L.Ed. 460 (1903) (referring to
"the narrowest and most obvious limits"). Such works are incapable of
sustaining a valid copyright. Nimmer s 2.01[b].

Even if a work qualifies as a copyrightable compilation, it receives
only limited protection. This is the point of s 103 of the Act. Section
103 explains that "[t]he subject matter of copyright ... includes
compilations," s 103(a), but that copyright protects only the author's
original contributions--not the facts or information conveyed:

"The copyright in a compilation ... extends only to the material
contributed by the author of such work, as distinguished from the
preexisting material employed in the work, and does not imply any
exclusive right in the preexisting material." s 103(b).

As s 103 makes clear, copyright is not a tool by which a compilation
author may keep others from using the facts or data he or she has
collected. "The most important point here is one that is commonly
misunderstood today: copyright ... has no effect one way or the other
on the copyright or public domain status of the preexisting material."
H.R.Rep., at 57; S.Rep., at 55, U.S.Code Cong. & Admin. News 1976, p.
5670. The 1909 Act did not require, as "sweat of the brow" courts
mistakenly assumed, that each subsequent compiler must start from
scratch and is precluded from relying on research undertaken by
another. See, e.g., Jeweler's Circular Publishing Co., 281 F., at
88-89. Rather, the facts contained in existing works may be freely
copied because copyright protects only the elements that owe their
origin to the compiler--the selection, coordination, and arrangement of
facts.

In summary, the 1976 revisions to the Copyright Act leave no doubt that
originality, not "sweat of the brow," is the touchstone of copyright
protection in directories and other fact-based works. Nor is there any
doubt that the same was true under the 1909 Act. The 1976 revisions
were a direct response to the Copyright Office's concern that many
lower courts had misconstrued this basic principle, and Congress
emphasized repeatedly that the purpose of the revisions was to clarify,
not change, existing law. The revisions explain with painstaking
clarity that copyright requires originality, s 102(a); that facts are
never original, s 102(b); that the copyright in a compilation does not
extend to the facts it contains, s 103(b); and that a compilation is
copyrightable only to the extent that it features an original
selection, coordination, or arrangement, s 101.

The 1976 revisions have proven largely successful in steering courts in
the right direction. A good example is Miller v. Universal City
Studios, Inc., 650 F.2d, at 1369-1370: "A copyright in a directory ...
is properly viewed as resting on the originality of the selection and
arrangement of the factual material, rather than on the industriousness
of the efforts to develop the information. Copyright protection does
not extend to the facts themselves, and the mere use of information
contained in a directory without a substantial copying of the format
does not constitute infringement" (citation omitted). Additionally, the
Second Circuit, which almost 70 years ago issued the classic
formulation of the "sweat of the brow" doctrine in Jeweler's Circular
Publishing Co., has now fully repudiated the reasoning of that
decision. See, e.g., Financial Information, Inc. v. Moody's Investors
Service, Inc., 808 F.2d 204, 207 (CA2 1986), cert. denied, 484 U.S.
820, 108 S.Ct. 79, 98 L.Ed.2d 42 (1987); Financial Information, Inc. v.
Moody's Investors Service, Inc., 751 F.2d 501, 510 (CA2 1984) (Newman,
J., concurring); Hoehling v. Universal City Studios, Inc., 618 F.2d
972, 979 (CA2 1980). Even those scholars who believe that "industrious
collection" should be rewarded seem to recognize that this is beyond
the scope of existing copyright law. See Denicola 516 ("[T]he very
vocabulary of copyright is ill suited to analyzing property rights in
works of nonfiction"); id., at 520-521, 525; Ginsburg 1867, 1870.

III.

There is no doubt that Feist took from the white pages of Rural's
directory a substantial amount of factual information. At a minimum,
Feist copied the names, towns, and telephone numbers of 1,309 of
Rural's subscribers. Not all copying, however, is 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. See Harper & Row, 471 U.S., at
548, 105 S.Ct., at 2224. The first element is not at issue here; 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 material in its yellow pages advertisements. See Brief
for Petitioner 18; Pet. for Cert. 9.

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.
Rural may have been the first to discover and report the names, towns,
and telephone numbers of its subscribers, but this data does not "
'ow[e] its origin' " to Rural. Burrow-Giles, 111 U.S., at 58, 4 S.Ct.,
at 281. 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
originality requirement "rule[s] out protecting ... names, addresses,
and telephone numbers of which the plaintiff by no stretch of the
imagination could be called the author." Patterson & Joyce 776.

Rural essentially concedes the point by referring to the names, towns,
and telephone numbers as "preexisting material." Brief for Respondent
17. Section 103(b) states explicitly that the copyright in a
compilation does not extend to "the preexisting material employed in
the work."

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. See Patterson &
Joyce 760, n. 144 ("While this requirement is sometimes characterized
as modest, or a low threshold, it is not without effect") (internal
quotation marks omitted; citations omitted). As this Court has
explained, the Constitution mandates some minimal degree of creativity,
see The Trade-Mark Cases, 100 U.S., at 94; and an author who claims
infringement must prove "the existence of ... intellectual production,
of thought, and conception." Burrow-Giles, supra, 111 U.S., at 59-60,
4 S.Ct., at 281-282.

The selection, coordination, and arrangement of Rural's white pages do
not satisfy the minimum constitutional standards for copyright
protection. As mentioned at the outset, Rural's white pages are
entirely typical. Persons desiring telephone service in Rural's service
area fill out an application and Rural issues them a telephone number.
In preparing its white pages, Rural simply takes the data provided by
its subscribers and lists it alphabetically by surname. The end product
is 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 to it for telephone 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 useful,
but insufficient creativity to make it original.

We note in passing that the selection featured in Rural's white pages
may also fail the originality requirement for another reason. Feist
points out that Rural did not truly "select" to publish the names and
telephone numbers of its subscribers; rather, it was required to do so
by the Kansas Corporation Commission as part of its monopoly franchise.
See 737 F.Supp., at 612. Accordingly, one could plausibly conclude that
this selection was dictated by state law, not by Rural.

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 nothing remotely 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. See Brief for
Information Industry Association et al. as Amici Curiae 10
(alphabetical arrangement "is universally observed in directories
published by local exchange telephone companies"). It is not only
unoriginal, it is practically inevitable. This time-honored tradition
does not possess the minimal creative spark required by the Copyright
Act and the Constitution.

We conclude that the names, towns, and telephone numbers copied by
Feist were not original to Rural and therefore were not protected by
the copyright in Rural's combined white and yellow pages directory. 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 and arranged alphabetically, fall short of the mark. As a
statutory matter, 17 U.S.C. s 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.' " Baker v. Selden, 101 U.S., at 105.

The judgment of the Court of Appeals is Reversed.

Justice BLACKMUN concurs in the judgment.

On 28 Feb 2006 15:22:11 GMT, Lloyd wrote:

Sorry, Tood. You're interpretation is seriously flawed.

P.S. Electromagnetic radiation has been around since the beginning of
the universe. It is only mankind's understanding of it which is
relatively recent.

Trying to tell anything to Toad is like trying to crack nuts with
a sledgehammer. Trouble is, the nut is quite impervious to the
impact.

STFU, idiot.

I think you should read mo

This Court has long recognized that the fact/expression dichotomy
limits severely the scope of protection in fact-based works. More than
a century ago, the Court observed: "The very object of publishing a
book on science or the useful arts is to communicate to the world the
useful knowledge which it contains. But this object would be frustrated

if the knowledge could not be used without incurring the guilt of
piracy of the book." Baker v. Selden, 101 U.S. 99, 103, 25 L.Ed. 841
(1880). We reiterated this point in Harper & Row:

"[N]o author may copyright facts or ideas. The copyright is limited to
those aspects of the work--termed 'expression'--that display the stamp
of the author's originality.

"[C]opyright does not prevent subsequent users from copying from a
prior author's work those constituent elements that are not
original--for example ... facts, or materials in the public domain--as
long as such use does not unfairly appropriate the author's original
contributions." 471 U.S., at 547-548, 105 S.Ct., at 2223-2224 (citation

omitted).

and....

It is this bedrock principle of copyright that mandates the law's
seemingly disparate treatment of facts and factual compilations. "No
one may claim originality as to facts." Id. 2.11[A], p. 2-157. This is
because facts do not owe their origin to an act of authorship. The
distinction is one between creation and discovery: the first person to
find and report a particular fact has not created the fact; he or she
has merely discovered its existence. To borrow from Burrow-Giles, one
who discovers a fact is not its "maker" or "originator." 111 U.S., at
58. "The discoverer merely finds and records." Nimmer 2.03[E].
Census-takers, for example, do not "create" the population figures that
emerge from their efforts; in a sense, they copy these figures from the
world around them. Denicola, Copyright in Collections of Facts: A
Theory for the Protection of Nonfiction Literary Works, 81 Colum.L.Rev.
516, 525 (1981) (hereinafter Denicola). Census data therefore do not
trigger copyright, because these data are not "original" in the
constitutional sense. Nimmer [begin page 348] 2.03[E]. The same is true
of all facts - scientific, historical, biographical, and news of the
day. "[T]hey may not be copyrighted, and are part of the public domain
available to every person." Miller, supra, at 1369.


Todd n9ogl

On 28 Feb 2006 06:41:27 -0800, N9OGL wrote:
AND YOUR SOME FAT COLOR GUY NAME BUTCH, LITTLE BITCH!!!

Should be "you're," Richard Simmons. Should be "colored," Richard
Simmons. But then you New Orleans faggots are all drunked up today
aren't you?

On Tue, 28 Feb 2006 15:41:30 +0000 (UTC),
() wrote:


STFU, idiot.

such stiling lang as we have come to expect from Mr slit the kiddy
porn man

_________________________________________
Usenet Zone Free Binaries Usenet Server
More than 140,000 groups
Unlimited download
http://www.usenetzone.com to open account