In yesterday’s post, I suggested consumers of internet information should consider copyrighting their search histories to counteract passage of Senate Joint Resolution 34 by the GOP-controlled Congress. SJR 34 allows internet service providers (ISP) to sell user personal information, including search history, without the user’s permission.
I am not a lawyer, nor do I play one on television. So I asked a friend who is a respected intellectual property lawyer if this concept had any validity under the law. He pointed me to a 1991 Supreme Court decision in the case of Feist Publications, Inc. v. Rural Telephone Service Co. Feist had included data from Rural’s local telephone directory in its regional white pages.
Prior to Feist v. Rural, courts had used what was referred to as “sweat of the brow” or “industrious collection” doctrine as sufficient justification for claiming copyright protection. In other words, an individual or organization was given credit merely for the time and effort required to collect information. In this decision, Justice Sandra Day O’Connor, writing for the Court, made a distinction between the collection of facts and the way they are presented.
Many compilations consist of nothing but raw data — i.e. wholly factual information not accompanied by any original expression. On what basis may one claim a copyright upon such work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. … The key to resolving the tension lies in understanding why facts are not copyrightable: The sine qua non of copyright is originality.
Justice O’Connor further argued the originality standard for copyright protection should be extremely low. A work must “possess a spark or minimal degree of creativity to be protected by copyright.” This distinction, particularly as I believe it applies to one’s internet search history, becomes even clearer when Justice O’Connor concludes:
Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement.
Under this legal standard, the fact that individuals surfing the internet choose the information and order in which they view web pages meets the “selection and arrangement” test outlined in Feist v. Rural. If I had written a paper titled, “Best Internet Sites to Understand Intellectual Property,” listing the URLs and order in which I compiled the information, such paper would be clearly protected under copyright law. The “selection and arrangement” are original. One can therefore argue a search history stored on one’s computer or in the cloud is merely a digital representation of that paper.
If you believe your search information is being sold to a third party by your ISP, the first step is to issue a “cease and desist” letter documenting the infringement. If the ISP fails to act on the letter, you have the option of taking them to court. The ISP may be liable for the actual dollar amount of damages and profits, ranging from $200 to $150,000 for each work infringed. The infringer also pays all attorney fees and court costs. (Source: Purdue University Law Library)
So, if like Howard Beale in the movie Network, you’re mad as hell and you’re not going to take it anymore, there is a course of action. If, and when, there is a legal challenge of SJR 34, I will update this information. Stay tuned.
For what it’s worth.
Dr. ESP