350 F.3d 640 (7th Cir. 2003), 03-2061, Assessment Technologies of WI, LLC v. WIREdata, Inc.

Docket Nº:03-2061
Citation:350 F.3d 640
Party Name:Assessment Technologies of WI, LLC v. WIREdata, Inc.
Case Date:November 25, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 640

350 F.3d 640 (7th Cir. 2003)

68 U.S.P.Q.2d 1953



WIREDATA, INC., Defendant-Appellant.

No. 03-2061.

United States Court of Appeals, Seventh Circuit

November 25, 2003

Argued Nov. 3, 2003.

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Daniel R. Johnson (argued), Ryan, Kromholz & Manion, Milwaukee, WI, for Plaintiff-Appellee.

Alan Deutch (argued), Deutch & Weiss, Fox Point, WI, for Defendant-Appellant.

Before POSNER, DIANE P. WOOD, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

This case is about the attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner. The owner is trying to secrete the

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data in its copyrighted program--a program the existence of which reduced the likelihood that the data would be retained in a form in which they would have been readily accessible. It would be appalling if such an attempt could succeed.

Assessment Technologies (AT, we'll call it) brought suit for copyright infringement and theft of trade secrets against WIREdata>

The copyright case seeks to block WIREdata from obtaining noncopyrighted data. AT claims that the data can't be extracted without infringement of its copyright. The copyright is of a compilation format, and the general issue that the appeal presents is the right of the owner of such a copyright to prevent his customers (that is, the copyright licensees) from disclosing the compiled data even if the data are in the public domain.

WIREdata, owned by Multiple Listing Services, Inc., wants to obtain, for use by real estate brokers, data regarding specific properties--address, owner's name, the age of the property, its assessed valuation, the number and type of rooms, and so forth--from the southeastern Wisconsin municipalities in which the properties are located. The municipalities collect such data in order to assess the value of the properties for property-tax purposes. Ordinarily they're happy to provide the data to anyone who will pay the modest cost of copying the data onto a disk. Indeed, Wisconsin's "open records" law, Wis. Stat. §§ 19.31-.39; State ex rel. Milwaukee Police Ass'n v. Jones, 237 Wis.2d 840, 615 N.W.2d 190, 194-96 (2000), which is applicable to data in digital form, see id. at 195-96; Wis. Stat. § 19.32(2), requires them to furnish such data to any person who will pay the copying cost. However, three municipalities refused WIREdata's request. They (or the contractors who do the actual tax assessment for them) are licensees of AT. The open-records law contains an exception for copyrighted materials, id., and these municipalities are afraid that furnishing WIREdata the requested data would violate the copyright. WIREdata has sued them in the state courts of Wisconsin in an attempt to force them to divulge the data, and those suits are pending. Alarmed by WIREdata's suits, AT brought the present suit to stop WIREdata from making such demands of the municipalities and seeking to enforce them by litigation.

The data that WIREdata wants are collected not by AT but by tax assessors hired by the municipalities. The assessors visit the property and by talking to the owner and poking around the property itself obtain the information that we mentioned in the preceding paragraph--the age of the property, the number of rooms, and so forth. AT has developed and copyrighted a computer program, called "Market Drive," for compiling these data. The assessor types into a computer the data that he has obtained from his visit to the property or from other sources of information and then the Market Drive program, in conjunction with a Microsoft database program (Microsoft Access), automatically allocates the data to 456 fields (that is, categories of information) grouped into 34

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master categories known as tables. Several types of data relating to a property, each allocated to a different field, are grouped together in a table called "Income Valuations," others in a table called "Residential Buildings," and so on. The data collected by the various assessors and inputted in the manner just described are stored in an electronic file, the database. The municipality's tax officials can use various queries in Market Drive or Market Access to view the data in the file.

WIREdata's appeal gets off on the wrong foot, with the contention that Market Drive lacks sufficient originality to be copyrightable. Copyright law unlike patent law does not require substantial originality. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345-48, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). In fact, it requires only enough originality to enable a work to be distinguished from similar works that are in the public domain, Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923, 929 (7th Cir. 2003); Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102-03 (2d Cir. 1951), since without some discernible distinction it would be impossible to determine whether a subsequent work was copying a copyrighted work or a public-domain work. This modest requirement is satisfied by Market Drive because no other real estate assessment program arranges the data collected by the assessor in these 456 fields grouped into these 34 categories, and because this structure is not so obvious or inevitable as to lack the minimal originality required, Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc., 945 F.2d 509, 513-14 (2d Cir...

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