Assessment Technologies of Wi, LLC v. Wiredata

• Decision Date: 25 November 2003
• Docket Number: No. 03-2061.,03-2061.
• Parties: ASSESSMENT TECHNOLOGIES OF WI, LLC, Plaintiff-Appellee, v. WIREDATA, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

350 F.3d 640

ASSESSMENT TECHNOLOGIES OF WI, LLC, Plaintiff-Appellee, v. WIREDATA, INC., Defendant-Appellant.

No. 03-2061.

United States Court of Appeals, Seventh Circuit.

Argued November 3, 2003.

Decided November 25, 2003.

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 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 WIRE-data, and the district court after an evidentiary hearing issued a permanent injunction on the basis of AT's copyright claim alone, without reaching the trade secret claim. A sample database in the demo version of AT's product—a version freely distributed for promotional purposes—reveals the entire structure of the database, thus making the trade secret claim incomprehensible to us. But we shall not make a formal ruling on the claim. It was not addressed either by the district court or by the parties in their submissions in this court, and conceivably if improbably it has more merit than we can find in it.

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 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.1991), as it would if the compilation program simply listed data in alphabetical or numerical order. Feist Publications, Inc. v. Rural Telephone Service Co., supra, 499 U.S. at 362-64. The obvious orderings, the lexical and the numeric, have long been in the public domain, and what is in the public domain cannot be appropriated by claiming copyright. Alternatively, if there is only one way in which to express an idea—for example, alphabetical order for the names in a phone book—then form and idea merge, and in that case since an idea cannot be copyrighted the copying of the form is not an infringement. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1082 (9th Cir.2000); Kregos v. Associated Press, 937 F.2d 700, 705-07 (2d Cir.1991). That is not the situation here.

So AT has a valid copyright; and if WIREdata said to itself, "Market Drive is a nifty way of sorting real estate data and we want the municipalities to give us their data in the form in which it is organized in the database, that is, sorted into AT's 456 fields grouped into its 34 tables," and the municipalities obliged, they would be infringing AT's copyright because they are not licensed to make copies of Market Drive for distribution to others; and WIREdata would be a contributory infringer (subject to a qualification concerning the fair-use defense to copyright infringement, including contributory infringement, that we discuss later). But WIREdata doesn't want the compilation as structured by Market Drive. It isn't in the business of making tax assessments, which is the business for which Market Drive is designed. It only wants the raw data, the data the assessors inputted into Market Drive. Once it gets those data it will sort them in accordance with its own needs, which have to do with providing the information about properties that is useful to real estate brokers as opposed to taxing authorities.

But how are the data to be extracted from the database without infringing the copyright? Or, what is not quite the same question, how can the data be separated from the tables and fields to which they are allocated by Market Drive? One possibility is to use tools in the Market Drive program itself to extract the data and place it in a separate electronic file; this can be done rapidly and easily with just a few keystrokes. But the municipalities may not have the program, because the inputting of the data, which did of course require its use, was done by assessors employed by firms to do this work as independent contractors of the municipalities. And if the municipalities do have the program, still their license from AT forbids them to disseminate the data collected by means of it—a restriction that may or may not be in violation of the state's open-records law, a question we come back to later. A second extraction possibility, which arises from the fact that the database is a Microsoft file accessible by Microsoft Access, is to use Access to extract the data and place it in a new file, bypassing Market Drive. But there is again the scope of the license to be considered and also whether the method of extraction is so cumbersome that it would require more effort than the open-records law requires of the agencies subject to it. It might take a programmer a couple of days to extract the data using Microsoft Access, and the municipalities might lack the time, or for that matter the programmers, to do the extraction. But that should not be a big problem, because WIREdata can hire programmers to extract the data from the municipalities' computers at its own expense.

From the standpoint of copyright law all that matters is that the process of extracting the raw data from the database does not involve copying Market Drive, or creating, as AT mysteriously asserts, a derivative work; all that is sought is raw data, data created not by AT but by the assessors, data that are...