On 10/27/2010 5:37 PM, Simon Spero wrote:
> Some people have suggested that I post a pointer to the decision in
"AMERICAN DENT. ASSN. v. DELTA DEN. PLANS ASSN., F,3D 977 (7th Cir,
> The opinion is from the 7th circuit (the cool IP circuit :-) (01)
This is an interesting argumentation style.
* Articles are copyrightable, but others may express the same facts in
their own language.
* What is copyrighted is text, not the facts therein expressed.
* Whole ontologies are copyrightable. [This would mean their text, since
text, not a set of ideas, is copyrighted.]
* The long textual descriptions of the categories are copyrightable.
[Other expressions of these ideas would not be covered.]
So far, this was strongly argued, and probably not controversial. (02)
But then the controversial part of the ruling is presented, not only with
no supporting argument, but weakly modifiedby "we think". They don't sound
too sure of their findings: (03)
"we think that even the short description and the number are original
works of authorship." (04)
If the short description is not a phrase that is common in the field, then
it would be copyrightable. Paragraph 6 gives an example that appears to be
a "short description", although it is relatively
long, and shows how it could be reworded in multiple ways. However, more
general short descriptions from higher up in the taxonomy might not be so
The argument about copyrighted numbers moves away from copyrighting text to
copyrighting the assignment of a code to a concept.
"The number assigned to any one of the three descriptions could have
had four or six digits rather than five; guided tissue regeneration
could have been placed in the 2500 series rather than the 4200 series;
again any of these choices is original to the author of a taxonomy, and
another author could do things differently. Every number in the ADA's
Code begins with zero, assuring a large supply of unused numbers for
procedures to be devised or reclassified in the future; an author could
have elected instead to leave wide gaps inside the sequence. A catalog
that initially assigns 04266, 04267, 04268 to three procedures will over
time depart substantively from one that initially assigns 42660, 42670,
and 42680 to the same three procedures." (06)
The creativity discussed here is not the creativity of creating new numbers
that have never been used before, but of assigning those numbers to [types
of] procedures. Certainly, the result is part of the whole copyrighted
work, just as the names of characters in a novel are. An author can
choose many names, but for some creative reason selects specific names.
Does this mean the individual names of characters are copyrighted? (07)
Copyright does not preclude an indexer from going through a novel and
specifying for each character which page(s) in the work s/he appears on
and writing a short description of the character. Wouldn't an analysis
of an ontology that describes each of its categories and the associated
category name (i.e., code value) be similarly not precluded? (08)
I don't see any argument along these lines in the opinion. (09)
-- doug foxvog (010)
> Opinion was written by Easterbrook, but Posner can't write them all.
Well, he could if he wanted to, but he probably had to rescue Chuck
Norris, or something.
>  This case presents the question whether a taxonomy is
>  Any original literary work may be copyrighted. The necessary
degree of "originality" is low, and the work need not be
aesthetically pleasing to be "literary." Feist Publications, Inc v.
Rural Telephone Service Co., 499 U.S. 340, 345-46 (1991). Term
papers by college sophomores are as much within the domain of
copyright as Saul Bellow's latest novel. See Bleistein v. Donaldson
Lithographing Co., 188 U.S. 239 (1903). Scholarship that explicates
important facts about the universe likewise is well within this
domain. Einstein's articles laying out the special and general
theories of relativity were original works even though many of the
core equations, such as the famous E = mc^2, express "facts" and
therefore are not copyrightable. Einstein could have explained
relativity in any of a hundred different ways; another physicist
could expound the same principles differently.
>  So too with a taxonomy - of butterflies, legal citations, or
dental procedures. Facts do not supply their own principles of
organization. Classification is a creative endeavor. Butterflies may
be grouped by their color, or the shape of their wings, or their
feeding or breeding habits, or their habitats, or the attributes of
their caterpillars, or the sequence of their DNA; each scheme of
classification could be expressed in multiple ways. Dental
procedures could be classified by complexity, or by the tools
necessary to perform them, or by the parts of the mouth involved, or
by the anesthesia employed, or in any of a dozen different ways. The
Code's descriptions don't "merge with the facts" any more than a
scientific description of butterfly attributes is part of a
butterfly. Cf. Nash v. CBS, Inc., 899 F.2d 1537 (7th Cir. 1990)
(discussing the fact-expression dichotomy). There can be multiple,
and equally original, biographies of the same person's life, and
multiple original taxonomies of a field of knowledge. Creativity
marks the expression even after the fundamental scheme has been
devised. This is clear enough for the long description of each
procedure in the ADA's Code. The long description is part of the
copyrighted work, and original long descriptions make the work as a
whole copyrightable. But we think that even the short description
and the number are original works of authorship.
doug foxvog doug@xxxxxxxxxx http://ProgressiveAustin.org (012)
"I speak as an American to the leaders of my own nation. The great
initiative in this war is ours. The initiative to stop it must be ours."
- Dr. Martin Luther King Jr.
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