Quote: the best way that the gang here at SCF can help.
In the above regard, perhaps one of us should coordinate with Bill Weiss to inquire as to his progress with Bob Allen...
If it comes right down to covering the licensing fee, I'm sure we can find voluntary contributors amongst all of us to cover it... and, I would vote to designate Bill Weiss to be the distributor of funds received from us if he would be comfortable with the responsibility of doing so...
essayk's post is thoughtful, but American Dental Association v. Delta Dental Plans Assoc. is not the end of the story. To begin with, the ADA coding system at issue involved triple data items consisting of a number, a short name, and a much longer description. The focus of the circuit judge's decision is on a system of such triples, not mere numbers, and his brief suggestion that numbers alone could be copyrighted is not necessary to the result and has led to harsh academic criticism of the decision, generally on the basis that the decision failed to consider the strictures of 17 U.S.C. 102(b) and the doctrine of "merger, where an idea and its expression are inseparable -- that is, the idea can effectively be expressed in only one way – so that copyright protection will yield to the principle that ideas may not be monopolized. See J. Hughes, "Created Facts and the Flawed Ontology of Copyright Law," 2007 Working Paper No. 201, Cardozo School of Law, New York; P. Samuelson, "Questioning Copyrights in Standards," 48 Boston Coll. L. J. 193 (2007).
Further, the US has twelve regional circuit courts of appeals (and the Federal Circuit, which has special jurisdiction), and ADA is an opinion of only one of them. The Ninth Circuit has reached a result favoring the copyright owner in a similar case involving the AMA, but it was decided on different grounds without commenting on whether numbering systems are copyrightable, Practice Management Info. Corp. v. American Medical Association, 121 F. 3d 516 (1997), and philosophical changes in the makeup of Ninth Circuit judges since 1997 probably mean that the case would go the other way if brought today. Meanwhile the Third Circuit and Sixth Circuit have gone completely the other way and have held that parts numbering systems are not eligible for protection. Southco Inc. v. Kanebridge Corp., 390 F.3d 276 (3rd Cir. 2004) and ATC Distribution Group Inc. v. Whatever It Takes Transmissions & Parts Inc., 402 F.3d 700 (6th Cir. 2005). In both decisions, one of which was by the whole 12-judge court (en banc), the courts denied copyright protection, finding that the "idea" of numbering items merged with "expression." The Southco case involved three trips to the Third Circuit by the copyright owner—all losses.
Thus, we have a circuit split and only the Supreme Court or Congress can resolve it; neither will be interested in the foreseeable future unless a sufficiently important commercial interest can be demonstrated. Therefore, it seems unlikely that there a clear test to separate public domain "ideas" and protectable "expression" ever will be developed. Courts will simply decide cases as best they can. But many courts will continue to be skeptical about copyright claims based on mechanical classification systems, particularly when the use of copyright appears intended to inhibit competition, yet receptive to the argument that genuine creativity should be rewarded with a copyright.
It is also instructive that among some 3,900 copyright claims that Amos Press has registered in the US Copyright Office, none appears to relate to the numbering system per se—although I may have missed it, because the USCO's search tools are limited. (Most are for album supplements and catalogs.) If anyone ever finds one, I would be interested in seeing it plus the deposit material on which the registration was based. (Interestingly, ATC's registration certificate for a "numbering system" is in there.)
Quote: It is also instructive that among some 3,900 copyright claims that Amos Press has registered in the US Copyright Office, none appears to relate to the numbering system per se—although I may have missed it, because the USCO's search tools are limited. (Most are for album supplements and catalogs.) If anyone ever finds one, I would be interested in seeing it plus the deposit material on which the registration was based. (Interestingly, ATC's registration certificate for a "numbering system" is in there.)
I agree that essayk has made the case for copyrighting Scott's numbering system as well as anyone possibly could, I think, but I had the same reaction you have here, that I don't think there is any evidence that Scott has in fact tried to copyright the "system." It so happens I spent some time earlier searching the database you reference looking for that very thing, and I cannot find it. If the word "number" or "system" was used in a Scott copyright registration, it should come up with the keyword search using +Scott +number or +Scott +system, but such searches turn up nothing. For the catalogs, when looking at what is listed as the basis for the copyright claim, you'll sometimes see "arr. & ill." It is a stretch to read "numbering system" into "arr." but I think that may be all there is.
And again, if we are in the realm of copyright, Scott has to accept that some usage will fall under the doctrine of fair use.
Quote: I don't think there is any evidence that Scott has in fact tried to copyright the "system."
In the trademark notice on the same page as the copyright notice in the 2015 Specialized, notice is given that "The terms ... SCOTT CATALOGUE NUMBERING SYSTEM, SCOTT CATALOG NUMBER, SCOTT NUMBER and abbreviations thereof, are trademarks of Scott Publishing Co., used to identify its publications and its copyrighted system for identifying and classifying postage stamps...." [emphasis mine.]
In their copyright notice they claim ownership of the "contents of this book" and specify 5 criteria for establishing fair use of said contents for which permission is granted. The use of their numbers in conjunction with the advertising of and actual offer of material for sale is included as point one in the list of said criteria. That use and "editorial use" in articles or commentary are allowed.
Not allowed are any catalogs, albums, or systems "based upon the Scott catalog numbers." It is that last point where 1847usa apparently ran into trouble. (see my further note below)
I don't think there is any doubt that in these statements Scott is expressing the opinion that their numbering system is at the heart of their catalog, and that all of it is protected by copyright.
cjpalermo, you have not commented on the fact that the numbering systems in Southco Inc. v. Kanebridge Corp., 390 F.3d 276 (3rd Cir. 2004) and ATC Distribution Group Inc. v. Whatever It Takes Transmissions & Parts Inc., 402 F.3d 700 (6th Cir. 2005) both represented the referencing of inventories actually being sold by the companies, which was their primary business, and were therefore incidental to their primary business. Like the Dental Association, Scott does not generate its taxonomic system as part of inventory control. The creation and production of catalogs and their derivatives (e.g. album pages) is its primary business, and its numbering system is not incidental but intrinsic to its primary business. That distinction, I believe, is at the heart of why the court decisions went one way in those two cases and in the opposite direction in the dentistry case. You are, of course, free to disagree.
Let me finally comment on why I think 1847usa has gotten into trouble with Scott on all this and would need to license the use of the numbering system if Scott can allow it at all. The type of structure used by 1847usa at their website could be called a "stamp identifier." It is a type of indexing system for the purpose of giving an alternative orderly method for a collector to determine the Scott catalog listing of particular stamps they may own or examine, without requiring the use of said catalog. If 1847usa can perform the same service to collectors without reference to the Scott catalog numbers, then they are free and encouraged to do so. But if the Scott numbers are intrinsic to the service that 1847usa is providing, then it is in competition with the owner of those same Scott numbers.
If Scott will grant a license to 1847usa for such a service as they render, then it is in the best interests of everyone concerned for the web site owner to obtain such a license with the assistance and cooperation of anyone who benefits from the web site.
Essayk, I don't remember the ruling mention ownership of products in the numbering systems. They seemed to focus on creativity and ideas. I still think Scott numbers don't meet the creativity requirement. They just number stamps sequentially, as best they can, based on a category designation. It is a very structured system with no room for creativity.
Having said that, there were dissenting judges and it seems possible Scott's copyright could be upheld. Perhaps that is why Krause also intended to attack their licensing practices.
I'd also like to add some Scott numbers that are less... complex. :) 10 11 24 25 26a C3 J18 PP8 BK65
The notice statements of Amos are unimpressive. They represent claims or assertions, not the actual bounds of protection. They are a form of advocacy and intimidation. A number of judges recently have decided cases in part on a theory of over-reaching by the IP owner, and when Amos says it has copyright on a "system" and the statute plainly says otherwise, there will come a day when Amos is said to have over-reached, and loses.
I don't agree that it is in the best interest of everyone for 1847 to take a license. When a party signs a document that concedes that an IP owner has rights that it doesn't, there is inevitably a chilling effect on others. I also disagree that 1847 is competitive. If anything, it drives sales of Scott catalogs; if you can more easily identify a stamp, then that increases your desire to have the catalog at hand to obtain valuation and other information such as the relationship of the identified stamp to others.
I should have been more clear. I'm well aware of the claim to have a copyright on the "system" as I've quoted the same words you quoted in previous posts. What I meant was that there is no evidence that they have registered a copyright claim for the "system." Given that they've got thousands of copyrights registered, this seems significant to me. I realize that a copyright exists normally exists whether a registration is made or not. But one cannot legally enforce a copyright claim unless it is registered. Moreover, if it is not "timely registered," you have to prove monetary harm. And that requires registration within three months of the creation of what the copyright is for. If the "system" itself has not been registered, it is way too late for Amos to do anything about that. And if it cannot prove monetary harm, it is limited to bullying.
That said, as I asked way back earlier in the discussion, might Amos have a claim that 1847USA has gone beyond the limits of fair use? It would take more than just using the numbers to claim that, I think. If much of the detail associated with the stamps cataloged at the web site came from Scott catalogs, then I could see the possibility of a claim for monetary damages. And it would not require registration of the "system." Moreover, the catalogs themselves seem to be registered on a timely basis, which means that that their copyright claims over the content of the catalogs (but not the system!) would be preemptively valid and entitle them to recover up to $150,000 and possibly lawyer fees without having prove actual monetary damages.
[@raymodj - the other replies came up as I was writing.] Since I do not have ready access to a body of case law decisions, nor the ability to navigate such a collection when I do, all I have to go on is Clayton's summary of the cases he cites. How much his summaries are "on point" I cannot say, but for our conversation I am assuming his observations are valid even if only partial. So I cannot comment beyond what I can see. Nonetheless, the point I brought up was not about "ownership" per se, it was about the fact that in the first two cases the numbers were an aid to selling an inventory of items the companies in the disputes held in stock, as opposed to the third case involving a more comprehensive catalog of numbers and descriptions intended to classify conditions known to exist anywhere. The latter was represented as a true taxonomy whereas the first two cases did not seem to represent their systems that way, incidental as the numbers were to the true business of those companies. Given the difference in final outcomes it seems to make a difference. That observation may be incidental and ancillary to the factors that ultimately influenced the courts decision, but it is a feature of distinction nonetheless, and one that I suggest has legal ramifications. I make that claim precisely because in their statement of permissions for "fair use" Scott distinguishes between the use of their numbers to assist in the sale of material and the use of their numbers to create alternative catalogs. The former concerns the ancillary association of their numbers with items in inventory, whereas the latter makes the number an integral and intrinsic part of the product being produced. So while the former poses no threat of competition to the products Scott produces, the latter is in direct competition and so constitutes a threat.
But the real point of distinction between the first two cases and the third in Clayton's article concerns the question of how the numbers fit into a real taxonomy, for that is where the creativity element comes in. Let me illustrate the difference:
Suppose I have two collections, A and B, and each has a dozen items that I purchased from a variety of sources at various costs, etc. Suppose I want to keep track of what I paid for each item in each collection, so that someday when I sell a collection I can easily figure out what I paid for it. So, in a database I assign a "record" number to each acquisition, with a cipher telling me that each went either into collection A or collection B. Each number is uniquely assigned to each item irrespective of which collection it is in. When I want to check on the status of each collection I merely have to sort on the record numbers and I can get a profile from the list of entries returned. So my numbers are an aid in identifying the contents of my collections. Have I then created a taxonomy for my material and a system for encoding that? No. Why not? Because those numbers are not associated with the physical characteristics of the objects in those collections, and so they do not encode a basis and structure for classifying them, which is the purpose of a taxonomic system. The creative element comes in the way the numbers are designed to make those kinds of associations.
In that simple list of Scott numbers you gave, there is certain information embedded in the number that assists in sorting one CLASS of item from another. That number is related to the physical characterisitcs of the item itself. Anyone knowing the code can tell you that C3 is an airmail stamp, J is a postage due stamp, BK65 is all or part of a booklet pane and so on. But that is only the BEGINNING of the system. Layers of subdivision of object types, colors, papers, and so on get encoded to help differentiate similarly appearing items. Keeping track of the sorting scheme, adjusting for new discoveries or obsolescence, all of that requires an enormous amount of creative effort on the part of the catalog producers for the dozens of categories and thousands of entries which make up a catalog. The creation of a taxonomic system to do that is what is recognized in copyright protection. Is the catalog perfect? Could it be improved? The creativity requirement in copyright law does not require that. The law in fact sets a very minimal requirement. But the complexity of the taxonomic system that is set forth as numbering in the Scott Specialized catalog unquestionably meets the creativity requirement.
Scott is entitled to protection for what it has created. There structured numbering system is intrinsic to that.
Quote: n that simple list of Scott numbers you gave, there is certain information embedded in the number that assists in sorting one CLASS of item from another. That number is related to the physical characterisitcs of the item itself. Anyone knowing the code can tell you that C3 is an airmail stamp, J is a postage due stamp, BK65 is all or part of a booklet pane and so on. But that is only the BEGINNING of the system. Layers of subdivision of object types, colors, papers, and so on get encoded to help differentiate similarly appearing items.
That exactly why I thought the comparison to the parts list was apt. They also created a system bases on classes of objects that related to the physical characteristics of the items themselves. Thread size, finish type, etc. So their numbering system also assisted in identifying the product. However, once that system is in place, no creativity is needed to continue numbering subsequent products. Any new booklet is BK(next number), a new airmail stamp, C(next number)
The third case seemed to hinge on a creative description included in the system.
With all the discussion about Scott Catalog copyright and trademark rights, it occurs to me that no one has yet posted the actual copyright statement included in most of their publications, so here it goes:
Although this is dated a few years ago, the listed year may change but the content of the wording remains exactly the same.
I haven't discussed the conditions under which Scott gives "permission" because I don't consider those terms controlling. If we are considering fair use, the law determines what is controlling, not Scott. If we are discussing whether Scott has a legally enforceable copyright over the "system," saying so doesn't make it so. If the "system" is not registered it is not legally enforceable.
Posting the Scott notices is helpful and informative in that the COPYRIGHT NOTICE section does NOT assert copyright in the "numbering system," only in the "contents of this book." Instead, copyright in the "numbering system" is referenced only obliquely in the TRADEMARK NOTICE section. No registration certificate for a numbering system has been found in records of the US Copyright Office, and none is identified in the cease-and-desist demands previously reproduced in this thread. The reference to the "copyrighted system for identifying and classifying postage stamps," without a notice in the COPYRIGHT NOTICE section of what is claimed, or the existence of registered rights, merely injects fear, uncertainty and doubt. This is the kind of over-reaching, or chilling effect, that concerns me.
On that score, the most recent posts by essayk and raymodj have crystallized the debate here: whether the number 2 for the second US stamp issued, C15 for the $2.60 Graf Zeppelin or J1 for the first postage due, among other examples, singly or taken together as a "system," constitute sufficient creative authorship to qualify for US copyright protection. essayk's side says yes, raymodj and my side say no, and probably never the twain shall meet (except perhaps in court). We can agree to disagree. As for 1847usa.com, the question for it and its backers is whether based on this thread or other resources it can convince Scott/Amos that their risk of loss is sufficiently high that they should cease demanding a license and/or royalty. I have to leave that task to their advocates. Query whether, for the IP owner, pressing this sort of claim outweighs the cost of later criticism in social media. Copyright is not subject to the "enforce it or lose it" rule that applies to trademarks and mandates "policing" your trademark rights and shutting down infringers.
The limited license granted in the COPYRIGHT NOTICE section is worth reading and covers many of the uses that have been discussed in this thread.
I think many of us (including sometimes me) think that Amos should always have "the good of the hobby" in mind when taking actions such as this. We can forget that they're a business like any other, with a profit and loss statement, a sales and legal department; they have board meetings where people go over strategy and potential threats to their business. I'm not qualified to speak to any of the legalities involved, only that we need to remember that they have a right to seek legal protection for what they believe is theirs. The Scott numbering system is all they have, really. If their grip on that falls apart, who would ever need to buy Scott Catalogs? I think it would be better to be rooting for more Scott Catalogs to be sold, not less. I'm not privy to Amos's P&L statement, but I'm guessing the stamp publishing business isn't what it used to be. I'd hate to see them get to the point where quality suffers or they cease publishing.