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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.
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: "[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.
"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.
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).
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.
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.
"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."
Yes, nothing says careful selection and arrangement, or "significant effort and creativity" like choosing a random new 9-digit number.
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?