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January 23, 2011

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I would agree with Copyfraudhater that copyright is often silly. In this case, I held open the possibility that the court would conclude that there was not enough originality in the list to warrant a compilation copyright. But it was the NY court that claimed that the "plaintiff may be entitled to a Common Law Copyright" in the list. In other words, it is not an open-and-shut case.

As far as awarding copyright protection to items used in crimes, that is a very interesting question. There is nothing in the Copyright Act to prohibit this that I can see. In a famous case involving obscenity (Mitchell Brothers v. Cinema Adult Theater), the court came out strongly that the illegal nature of the content of the work should not prevent it being protected by copyright. I suppose that one could extend the old doctrine of "unclean hands" to suggest that works used in the course of a crime should not receive copyright protection, but I don't know of any recent cases that argue this. And if you look at articles on the Theodore Kaczynski case, you do not find anyone that I know of suggesting that the Unabomber does not own the copyright in his productions. (See, for example, http://lawold.usc.edu/students/orgs/lawreview/M.NormanTheUnabomberStrikesAgain.cfm.)

But that means that also any list of crime (including holocasut) victims would be subject to a copyright of the murderers. They had to select their victims first, after all. Mass murder as a copyrightable work of, well, art? Sounds silly enough for me.

One could argue for a "compilation copyright" in the list. A compilation, the legislative history notes, "results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright" (and in this case, I think that we are all agreed that the individual names themselves could not be copyrighted). The question would then be whether the compilation of the list exhibits the required originality to secure a copyright.

If Schindler merely listed everyone working in his factory, there would be no selection and no copyright would apply. But apparently each of the extent lists has a different number of names on it. That suggests that some selection principles may have been in play, and that the lists are not mere mechanical constructions. It is not automatically apparent, therefore, that there is no copyright in the list - further research and assessment is needed.

How can a simple list of people's names have a copyright at all? It's not the slightest bit of creative input used (it's real people from the real world, after all, not a list of emperor of the Romulan Empire). What's next? Copyrighting a list of the lower 48, since someone at least had to come up with it first?

According to German law I would say that the list doesn't have enough originality for copyright protection.

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