According to a lawsuit filed on September 30th, the answer is "yes." Plaintiff Astrolabe, Inc. filed a lawsuit against two individuals for maintaining online databases of historical time zone information. The plaintiff alleges that it owns copyrights in the software program ACS Atlas, and that the defendant's website, by offering historical time zone information, infringes upon those copyrights.
Let's give Astrolabe the benefit of the doubt and assume that it meant to draft the complaint so that the allegation was that the defendant's websites copied the code or table structure of the ACS Atlas because, as we've said a number of times on this blog, you cannot copyright ideas or facts. Facts are facts; data is data. Such things are not protected by copyright.
Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. United States Copyright Office.
Thus, no infringement of copyrights can occur if the things being infringed are facts and data because facts and data are not copyright protected.
That is not to say the suit is totally without potential merit. If the alleged infringement is against original expression (e.g., introductory paragraphs and explanations about those facts), or the software code that drives the database, then copyright law may come in to play. Even the layouts of databases and menus pay be subject to copyright protection. See Positive Software Solutions, Inc. v. New Century Mortgage Corp., 259 F.Supp.2d 531 (N.D.Tex. 2003) (finding that "data structures" - layout of a database - could be subject to copyright protection).
Outside of the facts/expression issue, there are a couple of additional issues with this complaint:
First, Atlas ACS does not appear to be registered with the US Copyright Office. A federal registration (or at least a pending application, depending upon your state of residence) is a prerequisite to filing a copyright infringement lawsuit. 17 U.S.C. 411(a). It is unclear from the complaint whether ACS Atlas has been registered or not.
Second, assuming that the protected expression is the data structures built within the databases, one has to wonder whether the merger and scenes a faire doctrines will come in to play here. These doctrines are limits on the monopolistic power of copyright law. The merger doctrine holds that protection is denied to expression that is inseparable from the ideas, processes or facts underlying the expression. Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823 (10th Cir.1993). Similarly, the scenes a faire doctrine, in the context of software, states that protection is denied to those elements of a program that have been dictated by external factors. Id. at 838.
Both of these issues came to bear in a case brought in the District of Massachusetts (the same court Astrolabe brought its case in) - Baystate Technologies, Inc. v. Bentley Systems, Inc. 946 F.Supp. 1079, 1087 (D.Mass.,1996). In that case, the court relied on both the merger and scenes a faire doctrines to find that no infringement of software had occurred.
Third, there is a three year statute of limitations when it comes to civil copyright infringement cases. 17 U.S.C. 507(b). If the defendants can show that they have run their websites - with the allegedly infringing content - for more than three years, then it will be up to Astrolabe to show that it did not, nor could not have known, about the infringement until recently. This may be difficult to prove, depending upon the facts.
Fourth, the complaint seeks costs and attorneys' fees. However, these remedies are only available if the work was registered prior to or within three months of registration. 17 U.S.C. 412. Therefore, awarding attorneys' fees and costs will only be possible if ACS Atlas was registered prior to publication. That does not appear to be the case.
Finally, there might be a fair use argument here. The two defendants appear to be employed by the NIH and UCLA, so there may be a strong argument for the alleged infringement being an educational use. Of course, fair use is very fact-dependent, and the other fair use factors (the cost to license the portion of ACS Atlas that is being infringed, how much of the Atlas is being infringed, and the potential effect upon the work as a whole) may require a certain result. But at a minimum, from the facts currently at hand, I would say that fair use is certainly a potential defense.
The bottom line here is that this complaint does not look very likely to succeed unless facts not within the complaint are established. Even then, the chances of success may be slim depending upon what original expression (if any) is being infringed.
What Can We Learn: Here are a couple of takeaways when it comes to copyright infringement lawsuits:
- Always, always register your work. Copyright law gives you sufficient incentives to do this, and makes enforcement of your rights a lot harder if you don't.
- Register your work at the earliest opportunity. Failure to do so can result in a loss of important incentives - statutory damages, costs, and attorneys' fees.
- Copyright law is an area full of complexity - understand that not all "infringement" is actionable. Merger, scenes a faire, and fair use may require that an "infringement" actually be legal.
Ultimately, this may be another example of copyright law being used to monetize underperforming IP assets, which, as we all know from the story of Righthaven, is not necessarily a winning strategy.