I predict, therefore I am copyrightable

A brief note on two copyright cases from the last week, a comparison of which suggests that copyright doctrine has fetishized quantifiability over other forms of knowledge-making.  In one, a court (rightly) denies protection to huge amounts of factual matter, while in the other, a court (wrongly) grants protection to single letter grades because they’re the product of skill and judgment.  Eric Goldman has more to say about National Football Scouting, Inc. v. Rang (W.D. Wash. Dec. 13, 2012), but the money quote from the opinion is: “National’s Player Grades, unlike telephone numbers, are not facts; they are ‘compilations of data chosen and weighed with creativity and judgment.’ The Player Grades represent National’s opinion, based on its data and its expertise, of a player’s likely success in the NFL.”  Justin Hughes on microworks and James Grimmelmann on rankings have written relevantly about what’s wrong with this statement as an endpoint and not a beginning of a real analysis of whether there’s enough copyrightable output regardless of the creativity that went into the grade.

Contrast Effie Film, LLC v. Pomerance (S.D.N.Y. Dec. 18, 2012), which granted summary judgment to the declaratory judgment plaintiff  because any similarities between the parties’ screenplays came from their basis in the same historical events.  Here’s what the Effie court has to say about the creative judgments involved in doing history:

Hoehling is not an opinion about historians’ lack of creativity. 

Indeed, the critique offered by Patry and sympathetic historians—insisting that historians put original work into producing facts and interpretations—essentially assumes a labor-desert theory of copyright law and argues that historians are entitled to more robust property protection because they are performing the requisite creative labor.  See Jeanne C. Fromer, Expressive Incentives in Intellectual Property, 98 Va. L. Rev. 1745, 1753-56 (2012); cf. Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L.J. 1533 (1993).  But as its opening paragraph states, Hoehling is concerned primarily with the unique importance of maintaining a free flow of accessible historical information: “The rationale for this doctrine is that the cause of knowledge is best served when history is the common property of all, and each generation remains free to draw upon the discoveries and insights of the past.” To achieve that end, Hoehling prioritizes an instrumental conception of copyright law and concludes that weak copyright protections will best facilitate the creation and dissemination of new historical knowledge.

. . . Creativity in history may approximate the creative process of generating works of fiction, but is arguably of a different sort by virtue of historians’ goal of accurately representing past reality and the shared professional norms that discipline factual and interpretive adventurousness.  These differences, coupled with the special role that historical knowledge plays in democratic deliberation, may justify different treatment of originality doctrine with respect to historical facts and interpretation.  Further, incentive-based arguments may ultimately support Hoehling’s approach.  For instance, given the growth of a large professoriate motivated—professionally, personally, and financially—to generate new historical information even in the absence of strong copyright protections, weak protection may suffice to maximize production, or at least to push it above an independently specified floor.

These two cases accurately reflect a division in the case law: creative and effortful historical judgments: no protection.  Creative and effortful judgments about the future, though they are necessarily based on evidence from the past and are equally important to democratic deliberation: fully copyrightable, no matter how small!  This division strikes me as silly.