Eleventh Circuit: copyright in compilations of used boat listings infringedJune 22, 2007

In a decision yesterday, the Eleventh Circuit affirmed the finding of copyright infringement of a factual compilation, specifically a compilation of listings of used boats for sale.

Most notably, the court held that the proper standard for infringement was the "substantially similar" test, rather than the "virtually identical" test sometimes used for factual compilations (most often for computer programs). Under this standard, the court affirmed the finding of infringement, and concomitant injunction and award of damages.

More details of BUC Int'l Corp. v. Int'l Yacht Council Ltd. after the jump.

The plaintiff, BUC International Corporation ("BUC"), operates the BUCNET.com service, which is akin to a real estate multiple listing service, or MLS, but for used boats. BUC established a set format for its listings, and brokers would enter factual information about boats for sale into the prescribed format, typically with no changes. BUC registered its compilations with the U.S. Copyright Office beginning in 1997, and renewed it annually.

The International Yacht Council (IYC) wanted to establish a competing listing service. The evidence showed that often brokers would submit their listings to BUCNET, and then simply copy and paste the same listing into the IYC website. About 65% of the listings on IYC's website as of 2002 were derived from BUCNET listings, a fact determined by BUC placing "markers" in the middle of its listings in order to detect copying.

The case essentially boiled down to two issues: whether BUC had a valid copyright in its compilations, and whether the court applied the correct standard for copyright infringement of factual compilations.

IYC argued that there was insufficient originality in BUC's compilation to support a copyright, relying on the Supreme Court's decision in Feist Publications, Inc. v. Rural Telephone Service Co. , where the Court held that organizing listings alphabetically in a phone book was not sufficiently original to be protected as a factual compilation. The key to the issue is a determination of whether there are any elements of the selection, coordination, or arrangement of facts that are original.

Here, BUC provided the requisite originality in its selection of section headings directed toward particular attributes of boats. Further, the merger doctrine did not prevent copyrighting these categories, as there was great variety in listings before BUC provided its standard template. Also, the fact that the individual brokers actually entered the factual information into the template provided by BUC did not divest BUC of the copyright in the compilation.

Regarding the applicable test, the court held that the substantial similarity test that is typically applied in copyright cases also applied when the copyright claimed is a compilation. In short:

there must be substantial similarities between the original elements of BUC's compilation and the corresponding elements of the defendants' compilation.

The defendants argued for a "virtual identicality" standard (usually phrased as "virtually identical") that is typically applied when copyright infringement of a computer program is alleged. The court rejected this proposition, and although it did not explicitly limit the "virtually identical" standard to the context of computer programs, it did strongly indicate that it was so limited by stating that:

BUC presented the jury with claims for the infringement of the selection, order and arrangement of a factual compilation, not the nonliteral elements of a computer program. "Substantial similarity" was, therefore, the appropriate standard.

At the end of the day, the finding of copyright infringement was affirmed.

To read the full decision in BUC Int'l Corp. v. Int'l Yacht Council Ltd., click here.

Copyright guru William Patry, author of the treatise Patry on Copyright, has a post about the case on his blog here.

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