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On Tuesday, Judge Posner of the Court of Appeals for the Seventh Circuit issued this decision in Assessment Technologies of Wisconsin, LLC v. WIREData, Inc. WIREData wanted access to public-domain property assessment data collected by municipalities using Assessment Technologies’ software. Assessment Technologies claimed that, because the data entered into the software was arranged in an original way, AT owned a copyright on the compilation of the data, and that compilation may not be copied. Judge Posner ruled that, because it is possible to extract the public domain data from the copyrighted database, WIREData may do so without infringing AT’s copyright in the compilation. In dicta, Judge Posner noted that if it turns out to be impossible to extract the public domain data from the database, WIREData may simply copy the whole thing, since works which are inseparable from their public domain elements are not copyrightable.

This does seem to leave the municipalities in a bit of a bind. They have contracts with AT that may prohibit them from releasing the public domain data to WIREData. While this opinion contains an implicit criticism of it, ProCD v. Zeidenberg, which held that vendors may by contract restrict the copying of public domain data contained in their products, remains good law. Under ProCD, if the contracts with the municipalities are found to prohibit the copying of the public domain data contained in AT’s database, AT may not release the data to WIREData. The municipalities may be forced to make a difficult choice between breaching their contract with AT and violating Wisconsin’s open records law (which appears to contain exceptions for copyrighted records but not for contract-encumbered records). Or, on appeal, the Seventh Circuit could revisit ProCD and poke some holes in its overbroad restrictions on the dissemination of public domain data.