Judge Posner Chases A Wild Hare

Patent Avenger Jason Schultz is back from the East and through his blog I found Assessment Technologies v. WIREdata, Inc., No. 03-2061, 7th Cir. November 25, 2003, a case "about the attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted but were not created or obtained by the copyright owner." Naturally I was intrigued.
Here's the opinion
Assessment Technologies (not to be confused with Religious Technology... heh heh) owns copyright on a program called Market Drive which arranges data collected by real estate assessors into multiple fields and tables in a database. WIREdata, owned by Multiple Listing Services, wants municipalities (which use Market Drive to assess properties for taxes) to provide them with the raw data in their Market Drive databases. WIREdata provides the data to real estate brokers. A Wisconsin law requires municipalities to provide this data to any person at the cost of copying it. AT, however considers the data, once it has passed in and out of a Market Drive database, to be a "derivative work" of the copyrighted software and sued to stop WIREdata from trying to enforce the Wisconsin "open records" law to get the data from its licensees. I am sad to say that the district court swallowed this line and issued a preliminary injunction. Fortunately the 7th Circuit corrected this problem. Read on.Judge Posner, writing for the Court, started with the issue of whether AT has a valid copyright and concluded that it does. There are many ways public domain real estate data can be arranged in a database, and Market Drive's structure is not so obvious or inevitable as to lack the originality required for copyright. But that does not mean that any collection of data that comes out of a Market Drive database is a "derivative work" under copyright law. A derivative work is a translation or other transformation of an original work and must itself contain minimum originality to be protectable. But "a work that merely copies uncopyrightable material is wholly unoriginal and the making of such a work is therefore not an infringement." This is all pretty basic, unless you're a lawyer for Bikram Choudhury.
Now the opinion gets interesting. Judge Posner explains that AT would lose its copyright case even if the raw data were so entangled with the software that it could not be extracted without making a copy of the program, citing Sega v. Accolade. Copying the program to get at the data would be fair use. And if AT tried to circumvent the Court's decision by changing Market Drive to make it difficult for the municipalities to get out the raw data in fair use fashion, AT might be guilty of copyright misuse. The Constitution does not authorize Congress to create copyright in mere data. To try to use copyright in software to prevent municipalities from revealing their own data would likely be copyright misuse. Copyright misuse, like patent misuse, used to be merely a variety of antitrust, but is now free-standing. The argument "would be" that for a copyright owner to use an infringment suit to obtain property protection that copyright law clearly does not confer, hoping to force a settlement or defeat an opponent that may lack the resources to resist effectively is an abuse of process. After sharing these views with the reader, Judge Posner concludes that the Court "need not run this hare to the ground" because the data can be extracted without copying copyrighted software and is not a derivative work. But it's a fine hare to chase, and like Alice, I'm quite likely to jump down that rabbit hole myself.