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Case No. 06cv1445 BTM (S.D. Cal., August 16, 2007)

Copyright Infringement Claims Arising Out Of Copying Of Substantially All Of Plaintiff’s Compilation Of Online Deals Proceeds

Website containing compilation of online deals is protected by copyright as a compilation, as a result of plaintiff’s selection and arrangement, inter alia, of the deals included in the compilation.  Because the individual listings of the deals themselves are not protected by plaintiff’s copyright, however, in the absence of “bodily appropriation of [plaintiff’s] expression” or the “unauthorized use of substantially the entire item,” the use of a portion of those deals in the website of another will not rendered the defendant guilty of copyright infringement.  As a result, the court dismissed most of the copyright infringement claims advanced by, a website which posts compilations of online deals, against a competitor, which it accused of copying its listings of deals.  While the defendant did post on its site a number of the deals found in plaintiff’s compilations, it also posted other deals.  As to all compilations as to which the defendant copied less than 70% of the listings, the court dismissed plaintiff’s copyright infringement claim, finding defendant’s site was not sufficiently similar to sustain an infringement claim.  Only plaintiff’s claims as to those compilations as to which defendant copied over 70% of the listings, and those listings, in turn, comprised over 70% of defendant’s own compilation, were allowed to proceed.

Defendant Copies And Publishes ‘Deal Listings’ Found On Plaintiff’s Website

Plaintiff operates a website which makes available to the public compilations of online deals for various products.  If a user, as a result of this information, visits an online retailer and makes a purchase, plaintiff typically receives a commission.

Plaintiff obtained copyright registration for a number of his compilations, which contain an eclectic mix of products of various price points.  Plaintiff arranged these compilations so as to give the user the experience of a flea market.
 Defendant is a competitor that operates a website at at which it too makes available to the public listings of online deals.  While defendant had posted a number of the same deals found in plaintiff’s compilation on his site, his site contained a number of additional deals as well.

Claiming that defendant copies the deal listings from his site, plaintiff commenced this suit for copyright infringement.  In support of his claim, plaintiff submitted evidence that deal listings that appeared on his site with intentional misspellings also appeared on defendant’s site, with the same misspellings.  He also claimed that he posted deal listings daily at 11p.m, and that they would appear, in inverse order, on defendant’s site at 6 a.m. the next day.

Plaintiff’s Compilation Of Deal Listings Protect By Copyright

Plaintiff could not obtain copyright protection for the individual deal listings.  However, the Court held that plaintiff’s compilations were entitled to copyright protection. 

Compilations of data – “work[s] formed by the collection and assembling of preexisting materials or of data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship” 17 U.S.C. Section 101 – are entitled to protection if three elements are met:  “(1) the collection and assembly of pre-existing material facts or data; (2) the selection, coordination or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination or arrangement, of an original work of authorship.” 

To obtain protection, the compilation must be original.   While this requirement is not stringent, the compilation must display some minimal level of creativity.  The court held that plaintiff’s compilation possessed the requisite originality, and hence was entitled to protection.  Said the Court:

In terms of selection, … Chui’s compilation is not an inclusive list of all deals for all products.  Chui uses his individual judgment to select among a multitude of deals for various products.  There is nothing automatic or obvious about his selections.  Therefore, Chui’s compilations are original and are entitled to copyright protection.

Plaintiff Can Proceed With Copyright Infringement Claim Only When Plaintiff’s ‘Deal Listings’ Comprise 70% Or More Of Defendant’s Own Compilation

Nonetheless, most of plaintiff’s copyright infringement claims failed because defendant’s compilations were not sufficiently similar to plaintiff’s to infringe his copyright.

To establish copyright infringement, “the plaintiff must prove ownership of the work in question, access to the work by the defendant, and substantial similarity of both the general idea and the expression of those ideas.”  When addressing factual compilations, it is “only the compiler’s original selection and/or arrangement [that] may be protected – the underlying facts may be copied at will.”

When dealing with factual compilations such as those at bar, the court held that copyright infringement will not be found “in the absence of ‘bodily appropriation of expression’ or ‘unauthorized use of substantially the entire item.’”
Defendant’s site contained some, but not all, of the deal listings contained in plaintiff’s compilations.  The amount varied from 23% to 81%, with an average of 48%. 

The Court held that, in the main, there was insufficient similarity to sustain a claim for copyright infringement, and dismissed all claims where the percentage of deals copied from a particular compilation plaintiff created or that were found on defendant’s site were less than 70%.  For those compilations as to which the percentage was greater, the court allowed plaintiff to proceed with his copyright infringement claim.  Said the Court:

The Court finds that there is insufficient similarity to survive summary judgment where either the percentage of Plaintiff’s deals that were copied or the percentage of Defendant’s deals that were derived from Plaintiff’s website is less than 70%. … There are three compilations where the percentage of Plaintiff’s deals that have been copied and the percentage of defendant’s deals copied from plaintiff’s website exceed 70%. … Summary judgment is denied as to these compilations, but is granted as to the other compilations.

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