CBJN, Counting Systems Not Protected by Copyright Law?

[Cherry7Up]

Given my understanding of copyright law, authors only gain protection for their particular expression of ideas--not for the underlying ideas or facts themselves.

According to this, no blackjack counting system should itself be protected by copyright--as soon as someone comes up with a good system, it should be freely sharable. Moreover, the facts reported each month by CBJN should also no be protected--if someone wants to take those observations, arrange them into a different expression (format), and then sell them for less $, that should be perfectly legal.

Does anyone else have thoughts on this? Under this theory, it seems like mere "positive variance" (good fortune) that we've built up the amount of blackjack knowledge that we have since authors are guaranteed very little protection for their ideas.

There was an old case called International News Service v. Associated Press where "hot news" tips/facts were protected just for a few hours/days in order to make the work the AP does remain commercially practical (otherwise INS could have someone on the east coast read an AP paper and send the ideas via telegraph etc. to west coast papers for less than the AP would charge). This theory of protection has never really been applied again since INS v. AP--it would be interesting to see if a lawsuit between CBJN and some copycat distributor could bring it back into favor?

 

[EasyRhino]

I think I remember reading about this a while ago. Say you have expensive and somewhat niche data collection (stats on commercial aircraft fleets, for instance).

The information itself, that Airline X has plan Y in Z quantity, is not copyrighted. However, the presentation of the information is definitely copyrighted. Simply taking all of the identical data and reprinting it would also probably be a violation. I don't know where the line is drawn.

So, in conclusion, don't take CBJN and reprint it.

Similarly, I don't think you can particularly copyright a counting system (except maybe the name), but once the original author lays out a work, there is often to reason to re invent it.

 

[shadroch]

Years ago, I was an advisor for Overstreets Comic Book Price Guide. Each year, I would strongly suggest he remove what was an error from his book.
A few years later, an upstart magazine called Comics Value Monthly came along and Mr Overstreet sued them for copyright infringement. CVM claimed all their prices were arrived at thru their own research. The case came to court and Mr Overstreet revealed that he had purposely included non-existant books in his publication(one of which was the error I kept harping on) just to be able to prove someone was stealing his work. The publishers of CVM had no explanation of how their independant research had arrived at identical prices for non-existant books and were pretty much put out of business. The judge ordered them to pay royalities of 150% of cover price for each issue sold.

 

[QFIT]

A purely mathematically derived table is not copyrightable. A strategy, including all of the compromises that are made, is clearly copyrightable.

CBJN is obviously copyrighted. Of course you can collect the same data yourself and publish it, so long as you didn't collect it from CBJN.

 

[ChefJJ]

Years ago, I was an advisor for Overstreets Comic Book Price Guide. Each year, I would strongly suggest he remove what was an error from his book.
A few years later, an upstart magazine called Comics Value Monthly came along and Mr Overstreet sued them for copyright infringement. CVM claimed all their prices were arrived at thru their own research. The case came to court and Mr Overstreet revealed that he had purposely included non-existant books in his publication(one of which was the error I kept harping on) just to be able to prove someone was stealing his work. The publishers of CVM had no explanation of how their independant research had arrived at identical prices for non-existant books and were pretty much put out of business. The judge ordered them to pay royalities of 150% of cover price for each issue sold.

A big map atlas company that I deal with intentionally places one error on each page so that directly-copied material that is reproduced in an unauthorized manner for that same exact reason as your former client.

good luck

 

[Canceler]

A big map atlas company that I deal with intentionally places one error on each page so that directly-copied material that is reproduced in an unauthorized manner for that same exact reason as your former client.

Trivial Pursuit also has some intentionally wrong answers for this reason.

(As if the bra was really invented by someone named Titzling! :joker: )

 

[ChefJJ]

(As if the bra was really invented by someone named Titzling! :joker: )

Not to be confused with the "bro" :grin:

Really though, I didn't know that about Trivial Pursuit. :cool2:

 

[EasyRhino]

It wasn't really the Moops that invaded Spain?

 

[callipygian]

It wasn't really the Moops that invaded Spain?

Don't mess with the Bubble Boy!

 

[Cherry7Up]

A purely mathematically derived table is not copyrightable. A strategy, including all of the compromises that are made, is clearly copyrightable.

CBJN is obviously copyrighted. Of course you can collect the same data yourself and publish it, so long as you didn't collect it from CBJN.

This is simply false. Only expression is copyrightable--not facts or ideas. CBJN is a report of facts at casinos, that is not protectable by copyright.

It may be protected by some other source (this is kind of the thrust of my inquiry), but copyright law doesn't get there.

Similar issues arise in disputes over phone books--one company puts together a telephone directory and another company just copies their directory and reprints it (often with the intentionally erroneous errors included by the first creator). This has been ruled to not be a copyright violation (a violation only occurs when one creator copies creatively laid out advertisements/organizational schemes in yellow page ads). I posit that CBJN falls into the same unprotectable category as a white pages style phone directory.

Because of this, I think the publishers of CBJN would be wise to begin selling their product only upon consent by the purchaser to a terms of use agreement--then a reproduction could at least be a possible case of breach of contract.

 

[QFIT]

This is simply false. Only expression is copyrightable--not facts or ideas. CBJN is a report of facts at casinos, that is not protectable by copyright.

It may be protected by some other source (this is kind of the thrust of my inquiry), but copyright law doesn't get there.

Similar issues arise in disputes over phone books--one company puts together a telephone directory and another company just copies their directory and reprints it (often with the intentionally erroneous errors included by the first creator). This has been ruled to not be a copyright violation (a violation only occurs when one creator copies creatively laid out advertisements/organizational schemes in yellow page ads). I posit that CBJN falls into the same unprotectable category as a white pages style phone directory.

Because of this, I think the publishers of CBJN would be wise to begin selling their product only upon consent by the purchaser to a terms of use agreement--then a reproduction could at least be a possible case of breach of contract.

The following cannot be copyrighted:

"Works consisting entirely of information that is common
property and containing no original authorship (for
example: standard calendars, height and weight charts,
tape measures and rulers, and lists or tables taken from
public documents or other common sources)"​

The phone company publishes a public document and it can be copied. CBJN does not fall in this list since the information must be painstakingly gathered and updated. It exists in no public document and includes original authorship. CBJN is copyrighted and cannot be legally copied. One can create their own list using data that they have gathered.

 

[Cherry7Up]

The phone company publishes a public document and it can be copied. CBJN does not fall in this list since the information must be painstakingly gathered and updated. It exists in no public document and includes original authorship. CBJN is copyrighted and cannot be legally copied. One can create their own list using data that they have gathered.

I like this argumet, but I'm not sure that CBJN isn't from "other common sources" as the information is publicly available. If I wanted to, I could visit all those casinos and record all that information myself--it isn't secret in any way. However, this is certainly the best argument I have heard for protecting it.

 

[QFIT]

I like this argumet, but I'm not sure that CBJN isn't from "other common sources" as the information is publicly available. If I wanted to, I could visit all those casinos and record all that information myself--it isn't secret in any way. However, this is certainly the best argument I have heard for protecting it.

Yes you can gather the data yourself, and present it in your own manner. But you cannot copy it from a non-public source. CBJN is a not a public or common source. It is a subscription service.

 

[Cherry7Up]

Compilation work

Section 101 of the U.S. Copyright Act provides some basic definitions for use in understanding the rest of the statute.

I think that the definition of a "compilation" work is particularly useful here:

“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. The term ‘compilation’ includes collective works.”

This seems to be the best fit for CBJN. However, it is the selection coordination or arrangement of the data that is key to determining whether a compilation is sufficiently original to be protectable (copyright protects only "original works of authorship..." see section 102).

In Feist Publications v. Rural Telephone Service (the phone book case I mentioned earlier), the Supreme Court held that copying subsets of the data (the phone listings) was not copyright infringement because the phone listings lacked sufficient originality to earn copyright protection.

QFIT has proposed that this lack of originality comes from the fact that the data was publicly available, but I believe this misses the mark--the whole point of the dispute in Feist was that this large compilation of phone numbers was not publicly available without significant commercial investment (just like the CBJN data). Despite this, the Court was unwilling to award the data copyright protection merely for the "sweat of the brow" invested in gathering the data and creating the listing.

In distinguishing unprotectable "facts" from "works of authorship" the Court explained that:

“. . . facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence . . . The same is true of all facts—scientific, historical, biographical, and news of the day.”

At best, this leaves CBJN able to get copyright protection only for their particular method of selecting, arranging, or ordering the information--but even this is questionable as the Court in Feist also sets a minimum originality threshold for protecting these aspects of a compilation:

“originality is not a stringent standard; it does not require that facts be presented in an innovative or surprising way. It is equally true, however, that the selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever. The standard of originality is low, but it does exist . . .”

Under this reasoning, if I reprint CBJN exactly as is then they may be able to argue that their particular ordering of the information is sufficiently original to deserve protection. If they are successful, I would have infringed.

However, if I rearrange the information (listing casinos in an order based on the % advantage of their best available game or listing them in a single alphabetical list rather than alphabetically by geographic region), I believe there is no argument at all for copyright protection or infringement (despite the facts not being publicly available as QFIT notes).

I don't mean to imply that I think it would be a good idea to republish CBJN--this would undercut the small but critical amount of revenue the organization receives and uses to pay reporters and other expenses. To do so would have the long-term effect of destroying the publication and removing the information altogether. I merely find this to be an interesting case of a publication that falls outside of copyright protection but that users continue to pay subscription fees for (this is particularly interesting given the amount of truly copyrighted music, movies, etc. that an increasing number of people refuse to pay for).

 

[QFIT]

Copyright law is very broad. There is no way that rearranging the info is acceptable. Maps contain public information. Anyone can find out the location of cities and roads. Maps are copyrighted. The Copyright Office states

"These categories should be viewed broadly. For example,
computer programs and most “compilations” may be registered
as “literary works”; maps and architectural plans may
be registered as “pictorial, graphic, and sculptural works.”​

CBJN is a compilation. BTW, the penalties range up to ten years in prison.

 

[Cherry7Up]

QFIT, I readily agree that CBJN is a compilation. I'm just saying that Supreme Court of the United States has explained that it is not a compilation protected by copyright law.

My understanding of copyright law is far from perfect--I am curious, why do you believe that it is protected in spite of the points I raise about its factual nature and the assertion that it is not a creative/orginal work of authorship?

 

[QFIT]

QFIT, I readily agree that CBJN is a compilation. I'm just saying that Supreme Court of the United States has explained that it is not a compilation protected by copyright law.

My understanding of copyright law is far from perfect--I am curious, why do you believe that it is protected in spite of the points I raise about its factual nature and the assertion that it is not a creative/orginal work of authorship?

The quote that I gave is from the Copyright Office. They state that compilations ARE protected by copyright law. The SCOTUS decision referred to a specific compilation which came from what they ruled a public document. CBJN is not a public document and did not originate from a public document. It IS an original work of authorship.

 

[Cherry7Up]

The quote that I gave is from the Copyright Office. They state that compilations ARE protected by copyright law. The SCOTUS decision referred to a specific compilation which came from what they ruled a public document. CBJN is not a public document and did not originate from a public document. It IS an original work of authorship.

Again, this is simply not true. CBJN is a collection of facts that clearly fall into the definition of facts in Feist

“. . . facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence . . . The same is true of all facts—scientific, historical, biographical, and news of the day.”

These facts can not be protected regardless of their source. Thus while I (and the copyright office) agree that some compilations are protectable, CBJN is not.

Unless you are saying CBJN actually authors (that is, makes up or invents--not merely discovers and reports) the statistics it publishes--are you?

 

[QFIT]

You are misreading the decision. In no way does it say compilations of fact cannot be copyrighted. SCOTUS ruled that a simple alphabetic list of all of a company's subscribers was not copyrightable as it was not a piece of work that contained a "minimal degree" of creativity and did not promote progress as required by the Copyright Clause of the Constitution. CBJN is not such a simple list. It is collections of data that have been determined to be useful to card counters. It certainly exhibits a "minimal degree" of creativity and must represent "progress" or people wouldn't pay for it.

 

[Cherry7Up]

That's a pretty narrow reading of the opinion, but reasonable--and it would certainly result in protection for CBJN.

If not CBJN, what other sorts of compilations do you think would fall into the Feist exception--just phone listings?