Over at PrawfsBlawg, Dan Markel notes that his decision to post a scanned copy of the U.S. News ranking led to a call from the General Counsel’s office at U.S. News asking him to take down the .pdf he had scanned (which he has). There’s more in the comment thread at Concurring Opinions.
Here’s a question for the copyright types out there: Between the question of what is copyrightable under Feist, and what is fair use under 17 U.S.C. 107, how much information can a non-profit website (such as this one) post about the U.S. News rankings without running afoul of the copyright law? Assume the information is retyped and reorganized, not scanned in. Is just a list of the rankings permissible? The rankings with the overall scores? Rankings with the overall scores and peer assessment scores? Rankings with the overall scores, peer assessment scores, GPA range, LSAT range, and faculty-student ratio? I don’t know if the answers to these questions are clear, but I assume lots of people are wondering about them. If copyright experts out there can shed some light, the rest of us would appreciate it.
Not a copyright expert, but I’ve taken the class. I’ve also had to think about this issue in particular since posters on AutoAdmit/xoxohth have leaked the rankings three years in a row now and there’s always the possibility that we might have to respond to a call from U.S. News.
I believe the only part of the U.S. News rankings that *might* be copyrightable are the academic and practitioner reputation ratings and the overall score. Those are the only parts of the rankings that are actually original works, with the former products of the U.S. News reputation surveys and the latter the end result of U.S. News plugging those survey results and other inputs into a formula. However even reporting these would probably fall under fair use if there was some legitimate reason for reprinting them, such as criticism of the methodology.
I have a very hard time imagining anything else — the actual numerical rankings, LSAT/GPA ranges, etc. — running afoul of copyright law. The actual rankings are just an idea (U.S. News believes Yale is a better school than Stanford, which is a better school than Harvard, etc.), and the rest is all information that’s already freely available at countless other sources (school websites/viewbooks, the ABA Guide, etc.) before it even shows up in U.S. News.
Orin, there’s a simple answer to your question, but it’s not very satisfying. I don’t think anyone knows for certain how much of the US News rankings can be taken.
First, it’s not entirely clear what constitutes copyrightable subject matter. Generally, the rankings are just an aggregation of factual data, and normally that is loosely protected by copyright law. However, there is some case law that might support treating the numerical rankings, without more, as copyrightable. See CDN Inc. v. Kapes, 197 F.3d 1256 (9th Cir. 1999). Copyright law deals poorly with aggregation of facts, so there is a non-trivial number of cases where fact-like data gets protected under copyright law.
Then, it’s not clear what would constitute a fair use of any copyrightable subject matter. Normally, fair use should stretch further when extracting data from factual databases. At the same time, I think many courts would focus on the competitive injury and lost revenue to US News, which could be substantial here. So fair use is an equitable doctrine, and many courts would be sympathetic to the injuries suffered by US News and not very sympathetic to the poster.
I can answer your question a different way. I can say with 100% confidence that I would not have posted the rankings on my website. I can also add that the recent ART Act extended criminal copyright law to provide extra protection for pre-publication works, so I would also wonder if there could be criminal recourse for the posting.
Eric.
At a very simple level it is bedrock copyright law that facts cannot be copyrighted. However, compilations of facts *can* be copyrighted; the copyright covers the selection, coordination and arrangement of facts. A compilation copyright would cover to some degree the relevant pages of the US News rankings, see Sectoipnms 101 and 103 of the Copyright Act and Feist: http://www.pddoc.com/copyright/feist_v_rural.htm To add another wrinkle: a few cases stand for the proposition that facts that are “infused with opinion” are copyrightable in their own right, beyond mere selection, coordination and arrangement, see e.g. http://www.coolcopyright.com/cases/fulltext/cccmacleantext.htm
So, copyrightable “original expression” is clearly present in the US news magazine pages at issue, which were literally copied. However, not all unauthorized uses of a copyrighted work are necessarily infringing. Markel’s posting may have been a “fair use” under Section 107 of the Copyright Act. Prawsblawg runs advertisements, so one judge might say the use was commercial. The opposite view would be that since Prawblawg was not charging anyone to view the magazine pages, it was a noncommercial use. The US News rankings themselves are factual and therefore entitled to “thinner” protection than a purely creative work (though folks like Brian Leiter might argue that these rankings are ENTIRELY fictional!) The full pages were copied and distributed via the blog, which might cause fewer magazine sales or paid page views, but probably isn’t a substitute for the whole US News law school ranking report. So was it fair use? Who the heck knows! It would take a long and expensive lawsuit to decide, which is why copyright law is such a great professional opportunity!
I have practiced in the copyright area for several years, and written several published articles about it.
The answer, such as it is, lies in two cases:
1. Kregos v. AP, 937 F.2d 700
2. Harper & Row (in the Supreme Court)
Kregos says that the selection, sequence, and organization of pure facts is copyrightable, though the fact is not. It held that a baseball pitcher statistics form was copyrightable.
Extended to U.S. News, this means that the selection of statistics (and arguably the order – it would depend on how different the “infringing” work is) is protected.
Further extension is that the selection of data that is calculated to lead to the numbers we is also protected. Thus a score of “3.5″ could be protected if it is more than simply a “factual average” of survey data.
Assuming that it is not just a PDF of the original, the extent to which there might be liability is based on:
A. How much is copied and
B. Fair use factors
If one simply says X school is ranked 4th, and Y school is ranked 10th, then it is unlikely that a court would find derivative work.
If one printed all (or a large portion) of the schools in order, that would probably be infringement, as would one or more rows. Small variations would probably be considered “substantially similar”.
As for fair use, Harper & Row covers this. The question is how much of the work is copied, and whether it is the “essential” part of the work.
I would expect a court to give little fair use consideration. The big pro would be first amendment reporting rights. The major con is that it is an unpublished work, and printing factual information in the same sequence selected by U.S. News would usurp the U.S. News right to come to market on its own terms (this was in play in Harper & Row).
Note that copyright liability is not all there is. One could claim unfair competition, trade secret misappropriation, or even the “hot news” misappropriation.
That’s just one copyright lawyer’s opinion – mostly conservative. I wouldn’t want to spend a bunch of money testing whether I’m wrong.
In order for something to be copyrightable, there must be a modicum of creativity in it. I agree with the previous post that the overall score of each school is likely deemed creative since they USNWR uses its own creative formula to come up with each school’s rank. This may imply copying the list of each school’s numerical ranking, since the rank is derived from the overal score, may be copyright infringement. However, the fair use argument in the previous post is likely valid.
Photocopying of the actual pages from USNWR is most likely a violation of copyright law. Even if most of the material on those pages is not copyrightable, USNWR has a “thin-copyright” on exact duplications of the pages.
I agree with Eric & Ann that you can’t make any firm statements about this, but also with MR and elysian that if I were the GC of US News, I would feel comfortable sending a C&D in this situation.
But Orin’s question was about the rankings — could he retype the US News ranking here in plain text? This is just as fuzzy, but like the above commenters suggest, there’s a good argument that you need 107 to get out of liability. For instance, see a case like CCC Info. Servs. v. MacLean Hunter Mkt. Reports, 44 F.3d 61 (2d Cir. 1994), where defendant copies plaintiff’s used car (Red Book) valuations. CCC (defendant) sues for a DJ of non-infringement, gets it in the trial court and then loses it in the Second Circuit. The 2C withholds the application of the merger doctrine and instructs the trial court to enter judgment in favor of the copyright holder. The facts are somewhat more interesting than that brief summary, but here’s some text from pages 72-73, commenting on the Kregos case mentioned about by MR:
“Secondly, the valuations copied by CCC from the Red Book are not ideas of the first, building-block, category described in Kregos, but are rather in the category of approximative statements of opinion by the Red Book editors. To the extent that protection of the Red Book would impair free circulation of any ideas, these are ideas of the weaker category, infused with opinion; the valuations explain nothing, and describe no method, process or procedure. Maclean Hunter makes no attempt, for example, to monopolize the basis of its economic forecasting or the factors that it weighs; the Red Book’s entries are no more than the predictions of Red Book editors of used car values for six weeks on a rough regional basis. As noted above, Red Book specifies in its introduction that ‘you, the subscriber, must be the final judge of the actual value of a particular vehicle. Any guide book is a supplement to and not a substitute for expertise in the complex field of used vehicle valuation.’ This language is remarkably similar to our observation in Kregos, that the author ‘has been content to select categories of data that he obviously believes have some predictive power, but has left it to all sports page readers to make their own judgments as to the likely outcomes from the sets of data he has selected.”
If you shephardize Kregos and CCC, there is plenty of further reading on this topic. And I won’t cite Nimmer on this issue, btw, because I know a prior commenter wouldn’t approve.
OTOH, as to how 107 would apply in the case of something like the US News rankings, I think there are grounds for optimism. Business memos, for instance, should also, in theory, be protected by thin copyright, but look what happened in the Diebold case against the Swarthmore students:
http://scdc.sccs.swarthmore.edu/updates/diebold.php
p.s. Orin – what’s the deal HTML tags here? I didn’t want to do bold, ital, or blockquote because I can’t preview and there’s no indication of whether those tags would be permitted. Are we stuck with boring old plain text?