American Bankers Association Claims Copyright in 9-Digit numbers

Adam Holland, July 01, 2013

Abstract: An individual whose website is offering a searchable list of American banks' routing numbers receives a DMCA notice from the American Bankers' Association, claiming copyright in those numbers.

Courtesy of TechDirt, Chilling Effects recently learned of a genuinely bizarre takedown request, on which we have followed up.
Greg Thatcher runs a website that provides a variety of information and services. One of those is, or was, an alphabetized list of the routing numbers associated with American banks. If you've ever had to make a wire transfer, or set up on-line payments from your bank account, you've used one of these numbers, each of which is unique to a particular bank. It's the other long number on your checks that isn't your account number.

Thatcher got these routing numbers from a federal government website , as in fact anyone still can. He first began providing them on his website in 2005. According to Thatcher, although the numbers are indeed available from the Federal Reserve, his site provides added value and use because :

"The Federal Reserve allows you to download the raw data in an archaic, Cobol/Fortran style format. I download the numbers, parse out the information from the old format, and then display them in a nicer, readable format. I segregate and display the data by state and by bank name, and also have created my own search algorithm for searching by both bank name and routing number. I have received many, many emails from people at various financial institutions thanking me for the easy way I allow them to view and search this data. Although my site has a link to the Federal Reserve's site, most people choose to use my site (or one of the many other routing number sites, see below)."

However, given that the numbers are available from the Federal Reserve, it was therefore to Thatcher's great surprise when he received this DMCA notice. (presumably as someone who runs his own website, Thatcher is his own DMCA agent. See 17 USC 512 (c)(2).

Sent by a law firm representing the American Bankers Association, ("ABA") the letter requested that Thatcher remove the numbers from his website because they were violating the copyright in those numbers held by the ABA.
Thatcher received a similar notice in 2008, and at that time contacted a lawyer to see what he should do.

Thatcher: "[T]he lawyer at the ABA refused to answer his calls, so my lawyer told me to go ahead and keep the numbers up."

Thatcher plans to again consult a lawyer to address this new DMCA notice, but intriguingly says that the lawyers to whom he has spoken "all give me different answers about my situation".

A search of the U.S. Copyright Office records reveals that the ABA does indeed have a registered copyright in what is described as the key to the routing numbers. The most recent entry is for 2012.
As a brief aside, it is not immediately clear to what extent the copyright the ABA is claiming is on the compilation of numbers, i.e. in the surrounding material, and in their selection and arrangement, and to what extent the ABA has registered, or attempted to register, copyright in the 10 digit numbers themselves. Cf. Feist v. Rural Telephone . The answer to this question is not only germane, but possibly even dispositive to the issue of whether Thatcher has indeed infringed copyright. The original complaint indicates that the ABA believes Thatcher is infringing on the copyright of both the routing numbers and the key to the numbers. Chilling Effects was unable to find a registered copyright referencing the numbers alone.

Thatcher's response to the first letter was politely incredulous. [See here or link "2" at the bottom of the notice Thatcher received.]

It is not clear what triggered this particular complaint to Thatcher, although he suspects that it has something to do with the ABA's plans to attempt to monetize the numbers in some way. His response to the notice states as much.
Thatcher told Chilling Effects that he

"has received many, many emails from people saying that they've been using my site for years to counter fraud, returned transactions, etc. In my humble opinion, this is just another example of lawyers abusing the legal system to frighten small website owners like myself so that the ABA can earn money selling a book of routing numbers (several people have emailed me to say that this book costs $400 per year)."

What's interesting, though, is that although the second letter Thatcher received does seek to frame his usage of the numbers as "commercial" because of the presence of advertisements on his website, it also explicitly disclaims any current plans to license the numbers for use.
Setting aside for the moment the very real question of whether there can be copyright at all in random numbers, this would seem to be a classic example of what Wendy Gordon has written about as market failure or alternatively "dog in the manger".
Whatever the cause, the notice to Thatcher is clearly not an isolated incident. Thatcher has told Chilling Effects that there are many routing number sites, including http://usaroutingnumbers.com and www.routingnumbers.org and that he is aware of only one, http://www.laneguide.com, that has not received a notice. [As of July 1, 2013, http://www.laneguide.com was still posting numbers.]

Then, of course, there's the question of the DMCA claim itself. Can the ABA really be asserting copyright in these routing numbers, as their letter alleges? Thatcher's response was that he wasn't doing anything illegal because he'd gotten the numbers from the Federal Reserve website. This is an understandable, if possibly slightly flawed conclusion, almost certainly premised on the fact that there is no copyright in U.S. government works.. Thatcher's email response to the original letter suggests that

"[y]ou contact the Federal Reserve, and let them know that you believe they are distributing data that you (and no one else) believe belongs to the ABA. You should tell them to "take-down" this site: http://www.fededirectory.frb.org/download.cfm Note that the Federal Reserve's website allows anyone to download this publicly available data, and that this web page makes no mention of the ABA (because the ABA doesn't have any ownership or copyright of this data).

If you can somehow convince the Federal Reserve that they should not be making this data freely available, then you will automatically shut down my site as well as the many, many other sites and software packages that display this data.”

The follow-up letter addresses this by suggesting that the numbers are the ABA's, and that the Federal Reserve is not benefiting commercially, while Thatcher, because of his results, is.
So the ABA claims that the numbers are not government works. If they aren’t, could copyright in them be asserted?

While as per Feist the threshold for the requisite creativity is quite low, it seems difficult to believe that assigning a unique 9-digit number to each U.S. bank satisfies that standard. It's not even immediately clear to us that a 9-digit number falls into any of Section 102's categories Literary? A stretch. As well assert copyright in credit card numbers.
Have the ABA's lawyers read Feist vs. Rural Telephone? It seems like we could pretty easily swap out a few nouns without changing much about the holding as it applies to these facts. To wit:

"While Rural has a valid copyright in the directory as a whole because it contains some forward text and some original material in the yellow pages, there is nothing original in Rural's white pages. The raw data are uncopyrightable facts, and the way in which Rural selected, coordinated, and arranged those facts is not original in any way. Rural's selection of listings-subscribers' names, towns, and telephone numbers-could not be more obvious and lacks the modicum of creativity necessary to transform mere selection into copyrightable expression."

However, Nigel Howard the lawyer who wrote the follow-up response, thinks otherwise.
"These advances in the ABA Routing Number were the result of significant effort and creativity by the ABA. Today there are thousands ABA Routing Numbers and they play a critical role in the integrity of bank payment systems. Each nine digit ABA Routing Number is an original copyrighted work carefully selected and arranged as a result of the ABA's creativity. Copyright exists from the moment of creation of each ABA Routing Number and registration in the United States is voluntary."

Yes, nothing says careful selection and arrangement, or "significant effort and creativity" like choosing a random new 9-digit number.
Mike Masnick has some fun with this. At the risk of an excess of snark, if a mathematician inadvertently uses one of these numbers in a paper that is then sold for profit, is it copyright infringement?
And it's true registration is voluntary, but it is necessary if you want to seek statutory damages or attorney's fees. If you just want to scare or bully people, though, no need.
The numbers' arrangement in a database might be a different story, as the registered copyrights indicate, but even that would be pretty "thin" protection. Feist, 499 U.S. at 349.

Additionally, the ABA has been scrupulous about registering copyright in their key to the numbers over the years. So why not the numbers themselves? Maybe it's because they tried and were turned down?
We'll keep an eye on this to see how things turn out, but at first blush this does have the appearance of some good old-fashioned rent-seeking.

[UPDATE-2013-08-27 See here.]

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