Re: [ontolog-forum] Copyright in Taxonomies: Leading case in US law (ADA

[Simon Spero <ses@xxxxxxx>]

It's not just an argumentation style - it's the law :-)

Numbers qua numbers are not copyrightable where those numbers are not creative expressions. See Bender v. West Pub. ( http://caselaw.findlaw.com/us-2nd-circuit/1274699.html ); the issue also is also disposed of in Feist itself.

The "controversial part of the ruling"  is not  part of the ruling- it's just dicta. The issue isn't  addressed in any depth, since it's not part of decision. 

Simon

On Oct 28, 2010 12:58 AM, "doug foxvog" <doug@xxxxxxxxxx> wrote:
> 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,
> 1997)"
>> The opinion is from the 7th circuit (the cool IP circuit :-)
>
> 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.
>
> 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:
>
> "we think that even the short description and the number are original
> works of authorship."
>
> 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
> complex.
>
> 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."
>
> 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?
>
> 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?
>
> I don't see any argument along these lines in the opinion.
>
> -- doug foxvog
>
>> 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.
>>
>> ------
>>
>> http://www.law.cornell.edu/copyright/cases/126_F3d_977.htm
>>
>> [1] This case presents the question whether a taxonomy is
> copyrightable. [...]
>>
>> [4] 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.
>>
>> [5] 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.
>>
>> Simon
>>
>
>
>
>
> =============================================================
> doug foxvog doug@xxxxxxxxxx http://ProgressiveAustin.org
>
> "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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