Extending Copyright Protection to
Database Publishing
ArborWay, Inc.
Cambridge, MA 02138
Recent copyright decisions on compiled lists (Matthew Bender v. West Publishing
Co., Nov. 1998) caught the attention of business reporters because they represent
yet another unfavorable ruling against database publishers. These decisions,
all based on Feist (Feist v. Rural Telephone, 1991), suggest
that the legal debate over infringement lies in the fine points of technology
and the law. In fact, more substantial forces are at play. Technology has
transformed publishing, from words on paper to computer-based images, creating
new, highly dynamic business models. A long with these sweeping changes,
a breakthrough has occurred that offers an innovative way for
end-users to access content and for publishers to protect it. The core technology
underlying this advance was invented by ArborWay Inc., a research and development
start-up in Cambridge, Massachusetts. The purpose of this white paper is
to explain how ArborWay<>tm<> brand menus can reposition technology
in order to yield favorable decisions in the courts for database publishers,
and how this product uses existing laws to establish a more comprehensive
way to protect electronic content.
Differentiating
the Technology
The key to protecting
electronic content can be found in an area of computer science known as
retrieval technology. Database systems in use throughout the industry
retrieve content by pattern-matching techniques that treat all information
in the same way. High-profile applications of this technology include search
engines found on the Web such as ALTA VISTA, INFOSEEK, LYCOS, etc. Aside
from annoying side effects --- unwanted or unpredictable results --- the
fact that these systems cannot distinguish one unit of information from another
represents a serious liability, especially considering the growing volume
of information produced every day.
Going Beyond Hit
or Miss Searches
ArborWay breaks new
ground in retrieval technology by organizing information into a content
menu. The menu works just like an index at the back of a book where
a list of topics points to information in the text. In an ArborWay application,
end-users navigate its nested list menus to pinpoint information in the collection.
Each time they select a topic, the menu system generates a more detailed
list of topics until they arrive at the required information. The progressive
exchange of information between the user's selection and the next topic
list exploits the electronic medium's interactive capabilities, adding
an additional layer of both content and software that provides the basis
for expanding copyright protection.
A Creative Way
to Organize Content
In order to organize
information for a content menu, ArborWay invented a special-purpose data
structure to store and organize menu topics. Pointers in the structure establish
relationships among topics, lists, and information outside the structure,
producing a catalog of interconnected lists. Its pathways represent all the
different ways end-users would want to select and list information. Each
list menu generated by the system depicts a compilation of topics that, by
extension, includes an arrangement of content, making copyright protection
available to each list and selection depicted by the structure.
In this system, content
experts use a combination of computer-automated procedures and hand-crafted
links to build the menu. Since the underlying structure allows multiple paths
to reach the same unit of information, ArborWay is capable of representing
both
formal
1
and
informal
2
ways of organizing information. Developers also can
assign information to multiple topics and can create menu paths that can
show, on a highly detailed level, how elements under the same topic differ
from one another
3
.
The creative possibilities are unlimited. Yet, the structure's
real power, in terms of copyright law, comes from its ability to
co-opt the "thin" protection granted to compiled
lists by Feist, namely selection and arrangement, by depicting all possible
combinations of these elements in one place.
Responding to Feist With New Technology
Given the existence of Feist
, conventional retrieval methods could never yield a favorable decision for
database publishers because they limit the selection and arrangement of a
list to its layout on the media. ArborWay, in contrast, uses pointers to
establish as many tangible selections and arrangements as possible, so its
menu system can use these elements to help end-users find what they need.
In this respect, ArborWay is the first, and perhaps the only patented technology
that can overcome the narrow focus of the Feist decision and broaden copyright
protection to factual lists.
Expanding Database Protection
To further strengthen ArborWay's overall defense against infringement of
content its menu system also provides the following
overlapping layers of legal protection:
As a patented technology
(U.S. Patent 5,630,125 and 13 other U.S. Pending Patents) the approach presents
a very original and creative way to organize content, making it possible
to establish an unassailable copyright.
ArborWay's menus are licensed software
that prohibit end-users from reverse engineering
. Given the way software and content mingle in an application, a potential
infringer would have to violate a license agreement to extract content from
such a system.
And should an infringer attempt to copy information, the selection itself
would infringe the copyright protection
of ArborWay's list-oriented access.
In addition, ArborWay's license agreement
with information providers establishes a world-wide standard for content
protection, because ArborWay will suspend or invalidate a provider license
if recognized authorities identify stolen content in one of its applications.
This means that material copied from an ArborWay application in any jurisdiction
could not compete against another ArborWay application in some other location.
Yet, ArborWay brand menus are more than just an impenetrable shell that protects
content from infringement. As an electronic publishing tool, they
add value to information by supplying an index
that saves end-users time and effort. For commercial publishers, they provide
a competitive advantage
, especially over sources of "free" information on the Web, because conventional
access depends solely upon "trial and error" searches that are inefficient
and time consuming.
At present, however, the legal advantages of ArborWay considerably overshadow
the technical or business ones. ArborWay advances retrieval software by deploying
an index that organizes content in a database. From a legal perspective,
this capability transforms a compiled list into a larger body of work by
linking each fact to a hierarchical network of topics. Pointers in the software
merge content with the access method to produce a
gestalt-like effect where the whole is greater
than the sum of the parts. When compared with alternative proposals to protect
databases, such as legislative initiatives like H.R. 3531, ArborWay's ability
to use technology to build on Feist, and to add multiple protective layers,
clearly represents a more effective way to expand copyright protection and
to redefine the debate in terms that are consistent with the sweeping changes
in publishing technology.
__________________________
1
Formal systems, according to ArborWay's definition, include classification
methodologies like a taxonomy where all terms are mutually exclusive.
back
2
Informal classification systems, again according to an ArborWay definition,
allow overlapping terms, equivalent terms, and synonyms, and often include
a composite of several different organizations that link to each other.
back
3
ArborWay's data structure, alone, can depict an attribute/value network that
shows, for example, how "pens" come in a variety of "sizes", "colors", and
"shapes." Directly under each attribute, lets say "color", is a value list,
such as "red", "white", and "blue". When more than one of these attribute/value
lists are linked together the selections reveal important marketing information
about user preferences. back