In copyright law, when is a phone book like a James Joyce novel? Only the data collector knows!

It is an old “chestnut” in the law that phone books cannot be copyrighted — they are just lists of data including plain names and numbers. However, today in Experian v National Marketing, No. 16-16987 (D.C. No. 2:13-cv-00618-SPL, the Ninth Circuit held that plain-seeming Experian databases of consumer information could have enough creativity to become copyrighted material:

“The novel federal question in this appeal is whether lists
of names with addresses are copyrightable when they are the
product of a sophisticated process to ensure accuracy and
utility. In other words, whether such lists are more like a
telephone book, that the Supreme Court has held lacks any
creative spark, or more like Joyce’s Ulysses that changed the
course of 20th century literature. The answer, it turns out,
lies somewhere in between, but closer to a telephone book.”

This odd quote doesn’t tell the whole tale, as this opinion is good news, bad news, good news. Good news: Experian’s databases were culled and curated just barely enough to be entitled to copyright protection. Bad news: there is no copyright theft because National did just enough to make its data different (a very low bar). But good news in the end: Experian might still be able to prove that National stole its trade secrets.

So after these twists and turns, Experian might just now try and enjoy a quote from Ulysses as it looks forward to another round of lower court trials and tribulations:

“Hold to the now, the here, through which all future plunges to the past.”

http://sos.metnews.com/sos.cgi?0618//16-16987

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