Ninth Circuit Considers Copyright in Data Compilations

On June 27, 2018, in Experian Info Sols v Nationwide Mktg Servs, the United States Court of Appeals for the Ninth Circuit (the Court) affirmed (in part) a decision from the United States District Court for the District of Arizona (District Court) granting summary judgment on Experian Information Solutions Inc (Experian)’s claim for copyright infringement. 

The appellant, Experian, a company in the business of compiling databases of information and licensing portions of these databases to companies for use in marketing campaigns, alleged that the defendant, Nationwide Marketing Services Inc (Natimark), a competitor of Experian, had copied one of their databases.  The District Court granted summary judgment for Natimark, holding that Experian did not have a valid copyright in its compilation, because the compilation of name and address pairings lacked sufficient creativity or originality.

The Appeal Court disagreed, finding that a work requires only a modicum of creativity to be eligible for copyright protection. Experian’s selection process in culling data from multiple sources and identifying appropriate name and address pairings readily met the creativity threshold. However, the Appeal Court affirmed the District Court’s decision on other grounds. Experian did not establish infringement. Experian did not introduce its database into evidence, but rather presented evidence suggesting that there exists a 97% match rate between the two competing databases. The Appeal Court took issue with this evidence by noting that this rate could be at best 80% and that, on its own, a match rate of 80% is insufficient to establish the bodily appropriation of a work. Experian’s database had over 250 million records whereas Natimark’s database only had 200 million. Based on this finding, the Appeal Court affirmed the District Court’s grant of summary judgment in favour of Natimark with respect to the copyright infringement claim.

Summary By: Jae Morris