Appellate court to rule on possible copyright protection for publishers of "public information".

Now in its fourth year, a lawsuit by Law Bulletin Publishing Company against LRP Publications raises points that are of concern to many newsletter and specialized information publishers.

In the specific case, Law Bulletin Publishing alleges that LRP Publications obtained a subscription to its service through deceptive means (falsely identifying itself as a law firm) and illegally added materials from its service to a competing LRP service which was then marketed as containing all the same information and costing less. Law Bulletin Publishing contends that reductions in renewal income and new orders cost the company hundreds of thousands of dollars.

LRP contends that the information was not copyrightable. When the suit was filed, LRP publisher Ken Kahn told NL/NL that Law Bulletin was "putting up a smoke screen of 'deceptive practices' and so on, but the judge would bring it back to copyright. It's ultimately a copyright case, but the material is uncopyrightable" (NL/NL 12/26/97).

In very general terms, the case concerns possibly three questions that are of interest to newsletter publishers:

* Accepting that court precedent has held that some types of information--such as public documents like court decisions and "facts" like names and addresses--are not copyrightable, is there a line where enough additional editorial effort has been applied to the underlying information to make the final product eligible for copyright protection?

* Or, to the extent that some types of published information may be "uncopyrightable," can the publishers achieve a measure of protection for it by offering it for sale "under contract," specifically limiting the uses to which the buyer, or subscriber, may put it?

* Are there remedies in law against actions taken by a publisher that might, in some cases, be considered "unethical"?

U.S. Supreme Court precedent has held that there exists no such thing as "sweat equity" in copyright. The amount of time and trouble expended in gathering facts does not make the information copyrightable (Feist Publications vs. Rural Telephone Service Co.).

In this case, however, some observers contend that while the underlying materials involved in this case--EEOC rulings and jury verdicts--may be in themselves public information, the process involved in preparing them for publication is much different than simply republishing the addresses and telephone numbers in the Feist case--in other words, that enough additional editorial work is required to create the published product to justify copyright.

In one document denying remand to district court, however, the judge noted that while

The judge also footnoted that at least twice legislation has been introduced in Congress to extend copyright protection to compilations and has not been passed.

Feist Publications did not completely foreclose the use of the law of unfair competition to protect the investment involved in creating compilations of fact, such efforts must be limited to circumscribed situations, to avoid swallowing the Supreme Court's ruling that the public is generally free to reproduce factual materials.

Selling information under license

With regard to selling information under license, however, precedent would appear to favor the practice. It is established that a list owner can "sell" a mailing list under very specific terms limiting what rights are bought--i.e., the right to mail the list one time only and not enter the information into a database or make other use of it.

Deceptive trade practices

Law Bulletin Publishing also charges LRP with engaging in "deceptive acts" and giving "false and misleading information." However, if the court decides that the publisher was not entitled to protect its information with a license agreement, wouldn't this render moot allegations of what a subscriber did to evade the terms of the agreement?

Similarly, if LRP obtained the information legally, can they be charged with "unfair competition" because of what they subsequently did with it?

District court decision

In December 1999 the district court ruled in favor of Law Bulletin, holding that while LRP did not violate copyright and that the "license agreement" required by Law Bulletin could not extend protection to uncopyrightable materials, LRP had engaged in "deceptive acts." The judge imposed a fine of $1.00.

Both sides appealed the decision, Oral arguments are set for this month in Atlanta. While briefs have been filed, Robert Kehoe, attorney for Law Bulletin, said that they were submitted under seal and neither side is permitted to discuss the case prior to the hearing of the case.

Publication of materials like jury verdicts and state and federal regulations is an important segment of our industry, and this case could possibly establish important new precedents about the rights of both publishers and their subscribers.