Judges to Copyright Claimants: Do the Math
Number crunchers might enjoy two recently decided copyright cases. In Bensbargains.net, LLC v. XPBargains.com, a website (Bensbargains.net) compiled some of the best shopping deals on the web. A competitor (XPBargains.com) copied the Bensbargains deals. A California federal court held that the Bensbargains compilations were copyrightable and set a numerical (and novel) threshold of 70% for infringement--that is, infringement occurred if 70% of all Bensbargains deals appeared at the XPBargains site.
In a second case, New York Mercantile Exchange v. Intercontinental Exchange, the New York Mercantile Exchange ("NYMEX") sought to enforce a copyright in its settlement prices -- numbers that are used when trading energy futures. NYMEX claimed copyright in these numbers (not in their compilation or collection). "Claimed" would be the key term, here since it's a basic premise of copyright law that protection won't be granted for individual numbers. (The Copyright Office refused the NYMEX registration.) Nevertheless, NYMEX pursued this lawsuit and lost. The court relied on the merger doctrine--a principle that copyright won't protect ideas when they're inseparable from the manner in which they're expressed.
For more about copyrightability and intellectual property law, pick up a copy of my book Patent, Copyright & Trademark: An Intellectual Property Desk Reference (Nolo), now in its 9th edition.
