REFERENCES

1. 499 U.S. 340 (1991)(holding that telephone book white pages are not copyright protected because their production lacks the necessary creativity).

2. Feist's unnecessary elevation of a statutory interpretation question--what is the meaning of "compilation" in the Copyright Act?--into one of constitutional dimension is more questionable. See Dennis S. Karjala, Copyright and Misappropriation, 17 U. DAYTON L. REV. 885, 894-99 (1992); Michael G. Gerdes, Comment, Getting Beyond Constitutionally Mandated Originality as a Prerequisite for Federal Copyright Protection, 24 ARIZ. ST. L.J. 1461 (1992).

3. See, e.g., Wainwright Securities v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977) ("bottom line" conclusions of a comprehensive corporate research report), cert. denied, 434 U.S. 1014 (1978); CCC Information Services, Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61 (2d Cir. 1994) (estimates of current used car values); Mid America Title Co. v. Kirk, 867 F. Supp. 673 (N.D. Ill. 1994) (data collected through title searches for the purpose of issuing title insurance).

4. Professor Ginsburg coined the term "works of low authorship" for compilations of information whose final form reveals little of the personality of the author. Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865, 1866 (1990).

5. Compilations are copyright subject matter, even if a particular compilation is not copyright protected for want of creativity. Moreover, copying is one of the exclusive rights recognized by the Copyright Act. See 17 U.S.C. § 301; Karjala, supra note , at 897 & n.47; Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338, 358 (1992); Robert A. Gorman, Fact or Fancy? The Implications for Copyright, 29 J. COPR. SOC'Y 560, 598-610 (1982).

6. CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61 (2d Cir. 1994).

7. Professor Ginsburg has pointed out that the digital age may allow such creators a degree of control not possible earlier by making the work available only "on line" and subject to restrictions to which the user must agree before receiving access. If such contracts are enforceable, they may upset the careful balance of authors' and users' rights that has evolved under copyright. Jane C. Ginsburg, Surveying the Borders of Copyright, 41 J. COPR. SOC'Y 322, 325-26 (1994).

8. The major pre-Feist issue for maps concerned whether only maps that were the product of the mapmaker's own data collection were protected or copyright extended also to original compilations of preexisting maps. Compare Amsterdam v. Triangle Pubs., Inc., 189 F.2d 104 (3d Cir. 1951) with United States v. Hamilton, 583 F.2d 448 (9th Cir. 1978).

9. Section 102(a)(5) of the Copyright Act includes "pictorial, graphic, and sculptural works" within the category of works of authorship, which means they are copyright protected if they are original and if no other limitation on copyright applies, such as the merger doctrine, the scènes à faire doctrine, and the rule of Baker v. Selden, 101 U.S. 99 (1880) (establishing functionality as the dividing line between copyright and patent). "Pictorial, graphic, and sculptural works" are defined to include "maps." 17 U.S.C.A. § 101 (definition of "pictorial, graphic, and sculptural works").

10. Professor Denicola supplied the primary theoretical justification for this "sweat of the brow" approach. Robert C. Denicola, Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works, 81 COLUM. L. REV. 516 (1981).

11. "A ‘compilation' is 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." 17 U.S.C.A. § 101.

12. E.g., L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. REV. 719 (1989).

13. "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." 17 U.S.C. § 102(b).

14. 967 F.2d 135 (5th Cir. 1992).

15. Id. at 139, 141. After deciding that neither the merger nor the originality doctrines would deny the plaintiff a copyright in his maps, the Fifth Circuit moved immediately to the question of statutory damages, without discussing the issue of infringement (which remained a matter for the lower court to determine). In fact, the nature of the infringement in this case is far from clear. According to the opinion, defendant and each of defendant's customers actually bought copies of plaintiff's maps. These maps were then cut up and pasted together in such a way that, together with plastic overlays supplied by defendant, users could readily access a computer databank containing information about properties in the county in question. Consequently, there was no copying of plaintiff's maps. The only conceivable infringement would be the creation of a derivative work either through the cutting and pasting operation or the use of the plastic overlay containing additional information, or both, and then only if these value-adding activities that do not deprive the plaintiff of sales of his maps are not considered a fair use. Cf. Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988). Maps often would be less useful if such activities were to be construed as copyright infringement.

16. Marshall & Swift v. BS&A Software, 871 F. Supp. 952, 960 (W.D. Mich. 1994) (cost estimates mandated for use by state tax assessors were produced through a creative process of judgment and selection and are therefore copyright protected); Epic Metals Corp. v. Condec, Inc., 867 F. Supp. 1009 (M.D. Fla. 1994) (data derived from independent testing may be copyright protected); NADA Servs. Corp. v. CCC Info. Serv., Inc., 1991 U.S. Dist. Lexis 18874 (E.D. Ill. 1991) (numbers representing the assessed value of used motor vehicles may be protected if they result from a creative process of statistical analysis and judgment). A pre-Feist case rejecting the sweat of the brow theory of originality but finding copyright protection also falls into this category. Rockford Map Pub., Inc. v. Directory Serv. Co., 768 F.2d 145, 149 (7th Cir. 1985) (involving maps similar to those of Mason, the copyright covering the act of "translation from dusty books of legal jargon to a picture"). See also Rand McNally & Co. v. Fleet Mgt. Sys., Inc., 634 F. Supp. 604 (E.D. Ill. 1986) (relying on Rockford Map to base copyright protection solely on the arrangement of map data into tables and segmented maps, rather than on labor input in creating them, but finding infringement by inputting the resulting data into a computer, which could not involve a taking of the arrangement). Another case many thought Feist had killed may be resurrected under this theory. Wainwright Securities v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977) (specific predictions of earnings and other prospects contained in detailed analytical reports on companies held protected).

17. Moreover, copyright based on this notion could, at least in principle, protect the inaccurate maps but not the map of the best mapmaker who finally "gets it right."

18. E.g., Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980), cert. denied, 449 U.S. 841 (theory concerning the destruction of the dirigible Hindenberg unprotected); Nash v. CBS, 899 F.2d 1537 (7th Cir. 1990) (research conclusion that John Dillinger did not die in the manner commonly believed not protected); Gates Rubber Co. v. Bando Chemical Indus., Ltd., 9 F.3d 823, 843 (10th Cir. 1993) (constants used in mathematical equations determined through extensive experimentation not copyright protected); Project Devel. Group, Inc. v. O.H. Materials Corp., 766 F. Supp. 1348, 1354 (W.D. Pa. 1991) (estimates in bid proposal of scope of work, price, and quantities are all factual information, so copyright protection must be based on its selection or arrangement).

19. See generally Wendy J. Gordon, Reality as Artifact: From Feist to Fair Use, 55 LAW & CONTEMP. PROBS. 93, 93-96, 105 (1992) (pointing out the error in treating all facts as merely "discovered" rather than "created," but arguing that freedom to use facts should not depend on their "uncreated" status); Pamela Samuelson, The Originality Standard for Literary Works Under U.S. Copyright Law, 42 AM. J. COMP. L. 393, 399-400 (1994) (discussing the difficulties of the "discovery" rationale for denying copyright protection to facts).

20. E.g., 499 U.S. at 347 ("The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence."); 361 ("Rural may have been the first to discover and report . . . the telephone numbers . . . but this data does not ‘owe its origin' to Rural.").

21. Jane C. Ginsburg, Sabotaging and Reconstructing History: A Comment on the Scope of Copyright Protection in Works of History After Hoehling v. Universal City Studios, 29 J. COPR. SOC'Y 647, 657-61 (1982).

22. Miller v. Universal City Studios, Inc. 460 F. Supp. 984 (S.D. Fla. 1978) (denying copyright protection to fruits of 2,500 hours of research detailing a kidnapping), cited with approval, 499 U.S. at 347, 353, 360; Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966) (denying copyright protection to fruits of biographical research), cited with approval, 499 U.S. at 354; Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980) (denying copyright protection to historical theory on destruction of the dirigible Hindenberg), cited with approval, 499 U.S. at 360.

23. E.g., Nester's Map & Guide Corp. v. Hagstrom Map Co., 796 F. Supp. 729, 733 (E.D.N.Y. 1992); Greenbie v. Noble, 151 F. Supp. 45, 67 (S.D.N.Y. 1957); Oxford Book Co. v. College Entrance Book Co., 98 F.2d 688, 691 (2d Cir. 1938).

24. This result comports with our traditional understanding of idea-expression and the distinction between patent and copyright. To protect choices of source material or methodologies of interpretation would severely constrain subsequent researchers seeking to confirm or improve upon the current state of knowledge. This is the basic message of Baker v. Selden, 101 U.S. 99 (1880).

25. See infra text accompanying notes 57-66.

26. E.g., Warren Pubs., Inc. v. Microdos Data Corp., 52 F.3d 950, 952 (11th Cir. 1995) (creative "system" for selecting lead communities for arranging cable TV systems is copyright protected); Key Pubs., Inc. v. Chinatown Today Pub. Ent., 945 F.2d 509, 516 (2d Cir. 1991) (copyright protects the "organizing principle" by which businesses are selected for yellow page classification); Kregos v. Associated Press, 937 F.2d 700 (2d Cir. 1991) (choice of nine categories of baseball statistics for use in predicting game results is protected if original); Montgomery County Ass'n of Realtors, Inc. v. Realty Photo Master Corp., 878 F. Supp. 804, 810 (D. Md. 1995) (unique and elaborate "system" of abbreviations used to organize a database helps supply the necessary creativity for copyright protection); Practice Mgt. Info. Corp. v. American Medical Ass'n, 877 F. Supp. 1386, 1390 (C.D. Cal. 1994) (coding "system" mandated for government use sufficiently original to justify copyright protection); Nester's Map & Guide Corp. v. Hagstrom Map Co., 796 F.Supp. 729 (E.D.N.Y. 1992) (plan to locate addresses along major streets and selection aimed at the important and most helpful cross streets in a New York taxi guide held to be creative and protected and infringed by the taking of a portion of the listings); cf. Interactive Network, Inc. v. NTN Communs., Inc., 875 F. Supp. 1398, 1405 (N.D. Cal. 1995) (summary judgment inappropriate on certain protectible elements of a computer game "scoring system").

27. Karjala, supra note , at 890 & n.23; Ginsburg, supra note , at 344-45. Yellow page classification schemes, for example, are methods of presenting information in which both "user friendliness" and some degree of standardization are desirable. Protection of the yellow page classification scheme for Miami would mean, at least in principle, that no one could adapt that scheme to create yellow pages for Chicago. This would force every creator of yellow pages to start from scratch in devising unpatented classification schemes and inhibit the incremental development of user friendliness. Moviegoers would have to look under "Cinemas," "Film Theaters," "Theaters," "Movies," "Movie Houses," "Cinemagraphic Performances," and so on before they could find the listings in a strange city, all names created for the sake of being different (and avoiding copyright claims) rather than because of an innate aesthetic advance. What cries for protection in these cases is not the modest improvement in classification categories that new yellow page developers create. All of these people start from existing schemes and try to make improvements or changes targeted at particular groups or businesses. Each takes a great deal from the past, adds a little more, and we all benefit from the effort. It is rather the "sweat" of collecting the factual information that arguably must be protected if we are to encourage new efforts to supply useful sets of yellow page directories.

28. 101 U.S. 99 (1880) (accounting system and the forms necessary to practice the system are not copyright protected).

29. Robert A. Gorman, The Feist Case: Reflections on a Pathbreaking Copyright Decision, 18 RUTGERS COMPUTER & TECH. L.J. 731, 755-56 n.60 (1992) ("Of course, the copyright claimant seeks protection not for the sequencing principle in the abstract but rather for the particular sequence of data or materials that is generated by the application of that principle.").

30. 499 U.S. at 348 ("[C]opyright protection may extend only to those components of a work that are original to the author"), 360 ("[A] compilation is copyrightable only to the extent that it features an original selection, coordination, or arrangement").

31. Ginsburg, supra note , at 1876. Digital maps contain only such factual information, plus a (copyright-protected) computer program that allows the user to access the data. One need not copy the program, however, to copy the data.

32. Robert A. Gorman, Copyright Protection for the Collection and Representation of Facts, 76 HARV. L. REV. 1569, 1603 (1963); Ginsburg, supra note , at 1897 n.125.

33. Gorman, supra note , at 1583-89; Ginsburg, supra note , at 1905.

34. Denicola, supra note , at 531.

35. 499 U.S. at 352.

36. 499 U.S. at 348.

37. 44 F.3d 61 (2d Cir. 1994).

38. The original action was for a declaratory judgment of noninfringement by CCC, so the normal role in copyright cases of plaintiff as claimant was reversed.

39. 44 F.3d 66-67. See supra text accompanying notes 19-23 for a discussion of the deficiencies of distinguishing Feist on the basis of "discovered" rather than "created" facts.

40. Id. at 67-68. Such design should, however, be relevant to the scope of protection, because copyright should not protect those aspects of works dictated by external factors. Gates Rubber Co. v. Bando Chemical Indus., Ltd., 9 F.3d 823, 838 (10th Cir. 1993). Therefore, if originality is predicated on a creative arrangement that responds to the needs of the market, the scope of protection cannot be coextensive with the originality on which copyright protection is based. Indeed, there may be no overlap whatever between the aspects of the work that are protected and the aspects that give rise to copyright protection. This problem, of course, is not new. It was inherent in the old "sweat of the brow" approach to copyright originality.

41. Id. at 68-70. This last conclusion is simply wrong. Social registers and restaurant guides, for example, reflect traditional (and nonfunctional) authorship personality in their selections for inclusion, which permits the author to prevent a taking of substantially all of the chosen entries (even if the second author gathers the individual facts independently). Protection is available for many compilations, but the scope is "thin." The Red Book, for example, would still be protected as a compilation even if the individual valuations were treated as unprotected idea. Copying their precise arrangement, if original and not largely dictated by logic or external forces, would infringe. Whether that level of protection for this type of compilation suffices as an economic matter to ensure its production, of course, is the question that Feist forces.

42. Id. at 71.

43. Id. at 72.

44. Id. at 72-73. Professor Gorman, too, pointed to the different social utility of historical information, as opposed to horse racing results, as justifying a different approach to infringement in the two cases. Gorman, supra note , at 1583-84.

45. The opinion expands on this thought in a footnote pointing out that the Second Circuit applies the merger doctrine not at the copyrightability stage but rather in the context of the alleged infringement: "[I]t is of consequence that we are confronted with wholesale copying of a compilation rather than some more limited copying from a compilation." Id. at 72 n.26.

46. Incremental improvement of functional works is precisely the basis for the traditional protection of function under patent law rather than copyright. Dennis S. Karjala, Copyright Protection of Computer Software, Reverse Engineering, and Professor Miller, 19 U. DAYTON L. REV. 975, 976-83 (1994).

47. Such schemes should no more be copyright protected than the methods of operation involved in computer user interface menu command hierarchies. Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir. 1995).

48. 101 U.S. 99 (1880).

49. 937 F.2d 700 (2d Cir. 1991).

50. Judge Leval also relies on the Second Circuit's decision in Key Pubs., Inc. v. Chinatown Today Pub. Ent., 945 F.2d 509, 516 (2d Cir. 1991), which in dictum said that the "organizing principle" underlying a yellow page classification scheme would be protected, without apparent awareness of section 102(b)'s denial of copyright protection to any "principle." See Samuelson, supra note , at 404.

51. See supra note .

52. E.g., Kregos v. Associated Press, 937 F.2d 700 (2d Cir. 1991); Key Pubs., Inc. v. Chinatown Today Pub. Ent., 945 F.2d 509 (2d Cir. 1991).

53. Professor Reichman has proposed a bold new intellectual property paradigm based on "legal hybrids," the protection of which falls through the crack between patent and copyright. J. H. Reichman, Legal Hybrids Between the Patent and Copyright Paradigms, 94 COLUM. L. REV. 2432 (1994). It is not clear, however, how works of traditional copyright subject matter that under Feist fall outside the copyright umbrella, such as complete electronic databases or (perhaps) "barebones" plat maps, would fare. These and other works, like digitally stored versions of public domain texts, are vulnerable to piracy; however, they are not "legal hybrids" and they do not carry any "knowhow" on their face, which seems to be Professor Reichman's test for inclusion in the new scheme. In response to Professor Reichman's proposal, I have argued that we should simply focus on the misappropriation problem directly. Dennis S. Karjala, Misappropriation as a Third Intellectual Property Paradigm, 94 COLUM. L. REV. 2594 (1994).

54. See infra text accompanying notes 57-58.

55. This could be accomplished, as suggested in Feist, by redefining "compilation" in section 101 as simply "a work formed by the collection and assembling of preexisting materials or of data," dropping the requirement that originality be found in the selection, coordination, or arrangement of the compiled materials or data.

56. See supra note .

57. See the definition of "compilation" supra note . None of the Court's statutory analysis in parts IIB, IIC, and III of the opinion depends on the constitutional analysis in part IIA.

58. See Karjala, supra note , at 894-99. At least one post-Feist commentator has insisted upon the pictorial or graphic form of maps to distinguish them from factual compilations, and therefore from Feist. David B. Wolf, Is There Any Copyright Protection for Maps After Feist?, 39 J. COPR. SOC'Y 224, 239-42 (1992). This distinction, of course, only accentuates the limitations on protection afforded to more general geographic information systems discussed in the following subsection.

59. Even Feist admits that the requirement for creativity is "extremely low." 499 U.S. at 345. It is difficult to see why we do not drop such a minimal creativity requirement altogether, especially if refusing to do so creates a disincentive to the production of desirable works. Karjala, supra note , at 889.

60. E.g., United States v. Hamilton, 583 F.2d 448 (9th Cir. 1978).

61. See Karjala, supra note , at 909-15.

62. Ginsburg, supra note , at 346.

63. Ginsburg, supra note , at 1905.

64. Leo J. Raskind, The Continuing Process of Refining and Adapting Copyright Principles, 14 COLUM.-VLA J. L. & ARTS 125, 154 (1990) (second map compiler infringes if her work does not enhance, facilitate, or improve accessibility of the underlying information).

65. See Karjala, supra note ; Karjala, supra note . Professor Gorman agrees that a thin copyright is appropriate for maps by providing protection at least against "grosser forms" of copying and encouraging the adding of value either through verification or revision or through improvements in the presentation. Gorman, supra note , at 570.

66. A "copy" is any fixation of the work from which the work may be perceived or reproduced, either directly or through mechanical assistance. 17 U.S.C.A. § 101 (definition of "copies"). Consequently, a digital fixation is simply a copy of the original (protected) pictorial map. Electronic storage may affect the scope of protection, however, to the extent that ease of theft is explicitly or implicitly brought into the infringement analysis. A referee for this article pointed out that a common method for development of geographic information system databases is to digitize certain features from pictorial maps and include them in new databases containing other features and information. Obviously, digitizing an entire map for this purpose would seem to be at least a prima facie infringement, as would the taking of any substantial part. In both cases, however, the analysis of the previous subsection would see the productive use as a factor potentially limiting protection. If, in addition, the new, value-added product does not compete with the map whose features are copied, there may be a good argument that the activity does not infringe.

67. See supra notes 53 & 55-56 and accompanying text.