Monday, December 06, 2004

Not what you want as a response to your threat letter: FairTest, an organization that often challenges reliance on SAT scores in education, received a threat letter from the College Board, which runs the SATs, claiming that the scores posted on FairTest's site infringed the College Board's copyright. FairTest responded. Making claims on behalf of rival ACT might be one of the most interesting instances of overreaching I've seen in a while.

What's sad is that the claim that a score -- a single number, or even a series of them -- is protected by copyright is not generally ludicrous, though in this case I think it is. But some cases have held that prices are "compilations" and thus protected by copyright. If a number is produced by the exercise of skill and judgment -- determining, for example, how to aggregate cars to determine an average price for a certain make and model in a certain geographic area -- then a claim of copyrightability passes the laugh test, even though copyright isn't supposed to exist for words and short phrases. I suspect the College Board is prepared to argue that, like prices, its categories (scores by race, gender, family income) are produced not mechanically but by making decisions -- about, for example, how to define "race" ("multiracial" is an option, as is "other," as is "prefer not to respond," as is no "response") and where to break income levels ($18,000 or $20,000?) -- and therefore the resulting numbers are the product of the College Board's creative judgment.

I'd be inclined to call these numbers unprotectable "facts." Though the fact/expression line is a tricky one, these are not particularly creative decisions even though they could have been made in other ways, and in any event, given the public policy interests at stake, there's not much point in finding the scores copyrightable when I can hardly imagine an unauthorized use that I wouldn't find to be fair.

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