Affirming a district court’s denial of defendants’ motion for judgment as a matter of law and jury instruction on copyright infringement, the United States District Court for the Eleventh Circuit further articulated the originality requirement and standard for infringement of copyrights with respect to compilations. BUC Int’l Corp., v. Int’l Yacht Council Limited, Case No. 04-13653 (11th Cir., June 21, 2007) (Tjoflat, J).
The work at issue was the "Standard Listing Form and Format" (the Format) used in connection with a multiple listing service (MLS) of recreational boats and yachts called BUCNET. This service included a computer network and software that allowed brokers to share, compare, search and track the status of vessel listings stored in plaintiff’s database. The Format was created to facilitate the presentation of information on BUCNET, and the plaintiff obtained a copyright in the "compilation, selection and organization of [the BUCNET] database." The plaintiff later sued for copyright infringement upon learning that over 4,400 listings on defendants’ MLS replicated BUCNET listings. The case was tried to a jury, which found for the plaintiff.
On appeal, the defendants argued that BUCNET’s compilation of vessel listings lacked originality because, inter alia, the Format did not survive application of the merger doctrine, which holds that, when there are so few ways of expressing an idea, not even the expression of the idea is protected by copyright. The Court explained that the merger doctrine therefore operates as an exception to the normal idea-expression dichotomy, i.e., "copyright normally protects the expression of ideas, but not the ideas themselves".
The defendants argued that the vessel listings lacked originality because there were so few ways of effectively describing the "idea of dividing vessel listings by rooms, functional and aesthetic features of the vessel." The Court rejected this argument, stating that the defendants’ definition of the "idea" followed the contours of the chosen expression (i.e., the plaintiff’s vessel listings). According to the Court, defining expressions in this manner was an attempt to "cast the idea and the expression as one." Doing so, however, would "swallow up the idea-expression dichotomy, and the merger doctrine would become the rule instead of the exception." Instead, the Court stated that the "idea" was to "present yacht brokers with information about boats," and the evidence at trial demonstrated that plaintiff’s way of expressing this idea was one of many different ways. Accordingly, the merger doctrine did not apply to plaintiff’s listings.
Next, the defendants argued that the district court erred when it instructed the jury that it could find copyright infringement if there were "substantial similarities" between the original elements of the plaintiff’s compilation and the corresponding elements of the defendants’ compilation. Rather, the jury should have been instructed that to find copyright infringement, it had to find that the allegedly infringing elements were "virtually identical" to plaintiff’s original elements. The Court acknowledged that the "substantial similarity" standard imparted a narrow construction in the case of compilations. The Court, however, noted that the "virtual identicality" standard, which "called for a greater degree of similarity between the copyrighted work and the allegedly infringing work" than the "substantial similarity" standard, did not apply to compilations. Instead, the "virtual identicality" standard applied to "claims of copyright infringement of nonliteral elements of a computer program. Here, the plaintiff was not claiming infringement in the selection or arrangement embodied in a screen display or some other nonliteral element of its computer program and the district court did not err in instructing the jury on the "substantial similarity" standard.
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