Intellectual Property Law

Truthy More Protectable Than Truth

By Marty Schwimmer

Plaintiff publishes "database compilations and market research performance indices known as BanxQuote National Average Money Market and CD Rates." Defendants allegedly used indices beyond scope of license in offering bank services and Plaintiff moved on a variety of theories including copyright. Defendant moved to dismiss, arguing in part that plaintiff had not validly alleged infringement of protectable elements of plaintiff's work.

The decision constitutes Judge Karas' distillation of the Second Circuit's New York Merc decsion and other 'final value' cases - cases where unprotectible raw data is converted into 'final values' such as estimates or valuations. The Court comes up with:

(1) If unprotectable raw data is used, and
(2) the method of converting raw data was an industry standard or otherwise accepted as an objective methodology; and
(3) the final value attempted to measure an empirical reality;

then the final value is not protected by copyright.

To be protected, plaintiff must show that:

(1) the raw data was protectable [for example subjectivity was used in selection]; OR
(2) the method of converting the raw data into a final value was an original (but not necessarily novel) process that is neither widely accepted as objective, nor an industry standard; OR
(3) the final value did not attempt to measure an empirical reality.

Decision at pp 11-12.

The Court notes the paradox:

Though at first counter-intuitive, it is actually to be expected that the more acceptance a financial measure obtains (i.e. the more successful it is), the more 'fact-like' it becomes.

Decision at fn. 7.

Here, plaintiff alleged a set of facts where it was plausible that it was selective enough in its construction of its indices that such 'final values' may be protectable.

Decision Banxquote Copyright

Full post as published by Trademark Blog on July 20, 2010 (boomark / email).