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Infogroup, Inc. v. Database USA.com LLC

United States District Court, D. Nebraska

December 18, 2018

Infogroup, Inc., Delaware corporation, Plaintiff,
v.
Database USA.com LLC, a Nevada limited-liability company, and Vinod Gupta, Defendants.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the parties' post-trial motions. DatabaseUSA.com and Vinod Gupta (collectively, DatabaseUSA) move for renewed judgment as a matter of law (filing 507) and alternatively, for a new trial (filing 510). Both parties have also filed motions to amend the judgment (filing 473, filing 498, filing 510), and Infogroup has moved for attorney's fees (filing 495). The Court will grant those motions in part, and deny those motions in part as set forth below.

         I. BACKGROUND

         The seeds of this litigation were planted nearly five years ago when Infogroup found nine of its own seeds in a sample of DatabaseUSA's database. Since then, there have been numerous substantive disputes, various written and oral decisions by this Court, and a seven-day jury trial where the parties zealously presented their best evidence and arguments to a jury of their peers. After careful deliberation, the jury returned a verdict in favor of Infogroup on all seven of its claims: (1) False Advertising; (2) Copyright Infringement; (3) Mark Infringement; (4) Unfair Competition; (5) Breach of the 2008 Separation Agreement; (6) Breach of the 2012 Settlement Agreement; and (7) Unjust Enrichment. See generally filing 464. The jury awarded Infogroup $53, 600, 000.00 in damages. Filing 464.

         Now, DatabaseUSA argues that the jury's verdict cannot stand as a matter of law. Filing 508 at 4. Alternatively, DatabaseUSA moves for a new trial arguing various errors by the Court--including instructional errors and improper admissions. See filing 511 at 2. Infogroup opposes both motions, arguing that the Court's instructions were correct and that the jury's verdict is sound. Seefiling 518 at 6; filing 520 at 1.

         II. STANDARD OF REVIEW

         1. Rule 50

         When considering a motion for judgment as a matter of law, a court must determine whether or not the evidence was sufficient to create an issue of fact for the jury. Lane v. Chowning, 610 F.2d 1385, 1388 (8th Cir. 1979). The Court will grant a motion for judgment as a matter of law when all the evidence points one way and is susceptible of no reasonable inferences sustaining the position of the nonmoving party. Ehrhardt v. Penn. Mut. Life Ins. Co., 21 F.3d 266, 269 (8th Cir. 1994). In considering the motion, the Court views the record in the light most favorable to the prevailing party. Wash Solutions, Inc. v. PDQ Mfg., Inc., 395 F.3d 888, 892 (8th Cir. 2005). The Court must also assume that all conflicts in the evidence were resolved in favor of the prevailing party, and the Court must assume as proved all facts that the prevailing party's evidence tended to prove. E.E.O.C. v. Kohler Co., 335 F.3d 766, 772 (8th Cir. 2003). The motion should be denied unless the Court concludes that no reasonable juror could have returned a verdict for the nonmoving party. Billingsley v. City of Omaha, 277 F.3d 990, 995 (8th Cir. 2002).

         2. Rule 59

         A motion for new trial is governed by Federal Rule of Civil Procedure 59. The standard for granting a new trial is whether the verdict is against the great weight of the evidence. Butler v. French, 83 F.3d 942, 944 (8th Cir. 1996). In evaluating a motion for a new trial pursuant to Rule 59(a), the key question is whether a new trial should have been granted to avoid a miscarriage of justice. McKnight By & Through Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th Cir. 1994).

         III. DISCUSSION

         Before reaching the merits of the parties' arguments, the Court must briefly address three underlying contentions that form the foundation for DatabaseUSA's post-trial briefing: (1) copyright preemption; (2) exclusion of testimony; and (3) the spoliation instruction given by the Court. Seefiling 508 at 29-30; see also filing 511 at 14-15; 21-25. The Court will consider those arguments in turn below.

         1. Underlying Contentions

         (a) Preemption

         According to DatabaseUSA, two of Infogroup's state law claims--unfair competition and unjust enrichment--are preempted by Infogroup's copyright claim. That argument is based on a core principle of federal copyright law: that the Copyright Act preempts "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright . . . in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright." 17 U.S.C. § 301(a); Dryer v. Nat'l Football League, 814 F.3d 938, 942 (8th Cir. 2016).

         In determining whether federal copyright law preempts a cause of action under state law, the Court's analysis is twofold: (1) whether the work at issue is within the subject matter of copyright as defined in §§ 102 and 103 of the Copyright Act; and (2) whether the state-law-created right is equivalent to any of the exclusive rights within the general scope of copyright as specified in § 106. Id. But section 301 preempts only those state law rights that "may be abridged by an act which, in and of itself, would infringe one of the exclusive rights provided by federal copyright law." Nat'l Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 431 (8th Cir. 1993) (quoting Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir. 1992)). So, if an extra element is required to constitute a state-created cause of action-- instead of or in addition to the acts of reproduction, performance, distribution or display protected by the Copyright Act--then the claim does not lie within the general scope of copyright and there is no preemption. Id. (citing 1 Nimmer on Copyright § 1.01[B], at 1-14-15)). Stated differently, the state law claims must be qualitatively different from Infogroup's copyright claim. See generally id.

         To establish a claim of unfair competition, Infogroup is required to demonstrate that DatabaseUSA attempted to pass off its goods or services (i.e., its database) as Infogroup's product. See Restatement (Third) of Unfair Competition, §§ 2-4 (1995); John Markel Ford, Inc. v. Auto-Owners Ins. Co., 543 N.W.2d 173, 178 (Neb. 1996) (using the Restatement). It is well-established that a state law unfair competition claim that alleges the tort of passing off is not preempted because such a claim alleges an extra element of deception or misrepresentation that is not necessary for copyright infringement. Donald Frederick Evans & Assocs., Inc. v. Cont'l Homes, Inc., 785 F.2d 897, 914 (11th Cir. 1986); Warner Bros. Inc. v. Am. Broad. Cos., Inc., 720 F.2d 231, 247 (2nd Cir. 1983); Nicassio v. Viacom Int'l, Inc., 309 F.Supp.3d 381, 397 (W.D. Pa. 2018); Kitchen & Bath Concepts of Pittsburgh, LLC v. Eddy Homes, Inc., 2016 WL 7404559, *5 (W.D. Pa. 2016); Kindergartners Count, Inc. v. Demoulin, 171 F.Supp.2d 1183, 1191 (D. Kan. 2001); cf. Take-Two Interactive Software, Inc. v. Zipperer, No. 18-CV-2608, 2018 WL 4347796, at *7 (S.D.N.Y. Aug. 16, 2018).

         For similar reasons, Infogroup's unjust enrichment claim is not preempted by the Copyright Act. To prove an unjust enrichment claim, Infogroup must show that DatabaseUSA obtained and benefitted from something of value that it was not entitled to. Kalkowski v. Neb. Nat'l Trails Museum Found., Inc., 862 N.W.2d 294, 301-02 (Neb. 2015) (emphasis added) (quoting Restatement (Third) of Restitution and Unjust Enrichment § 2, comment a. (2011)). That "something of value," the jury could determine, was obtained through DatabaseUSA's deception or misrepresentation. And as discussed above, the element of deception or misrepresentation is not necessary for a copyright cause of action. Accordingly, the Court concludes that neither Infogroup's unfair competition or unjust enrichment claim is preempted by its copyright claim--and as such, DatabaseUSA's Rule 50 motion will be denied on those grounds. Seefiling 508 at 29-31.

         (b) Motion to Exclude Testimony

         DatabaseUSA also claims the testimony of two witnesses should have been excluded. See filing 511 at 14. Specifically, DatabaseUSA claims that John Hofmann and Amit Khanna were allowed to testify over several foundational objections on topics upon which they were not qualified to render an opinion. SeeFiling 511 at 14.

         First, DatabaseUSA claims that John Hofmann's testimony was erroneously admitted. In support of that contention, DatabaseUSA makes two arguments: (1) DatabaseUSA claims that Hofmann's damage model was "unreliable, illogical, inconsistent with the evidence, and otherwise flawed;" and (2) DatabaseUSA claims that because there was no way for the jury to disaggregate what portion of damages was attributable to what claims, his testimony was inherently speculative. Filing 511 at 14.

         With respect to DatabaseUSA's latter contention, DatabaseUSA's specifically claims that because the jury had no way to "disaggregate damages" between Infogroup's copyright claim and the remaining causes of action, Hofmann's testimony should have been excluded. Seefiling 511 at 15-18. This argument is based, in large part, on various antitrust decisions. See Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir. 2000); Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483, 1494 (8th Cir. 1992); Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1352 (9th Cir. 1985). Those decisions, very generally, require a damage expert to separate lawful from unlawful conduct to ensure the expert's testimony is not speculative or based on conjecture. Concord Boat Corp., 207 F.3d at 1057 (emphasis supplied).

         But in those cases, the problem is not, as DatabaseUSA suggests, that the jury was unable to parse out the amount of damage associated with each allegation of unlawful conduct. Rather, the problem is that there was "no evidence on the amount of damages attributable only to the unlawful conduct." Farley Transp. Co., 786 F.2d at 1352 (9th Cir. 1985) (emphasis in original); see also Amerinet, Inc., 972 F.2d at 1494. Stated differently, the critical flaw in the antitrust context was the lack of evidence linking the defendant's profits to the customer's own motivations (i.e., a lower price point) and the unlawful conduct of the defendant (i.e., anti-trust violations). Id. That is, there was nothing to suggest what portions of the claimed profits were attributable to unlawful conduct, and what portions of the claimed profits are attributable to lawful competition.

         Here, however, Hofmann's testimony specifically separated $39.6 million of DatabaseUSA's revenue attributable to unlawful conduct--as a result of DatabaseUSA's copyright infringement, false advertising, and other misconduct--from its overall revenue of $46.6 million. Filing 479 at 37; E114. In other words, according to Hofmann, at least $7 million of DatabaseUSA's overall profits were not linked to any of DatabaseUSA's unlawful conduct, but rather, profits it obtained fair and square.

         Stated more simply, DatabaseUSA's perceived issues with Hofmann's testimony are not whether the jury could determine the amount of damages attributable to DatabaseUSA's unlawful conduct. Rather, the problem is precisely what unlawful conduct (i.e., copyright infringement, false advertising, mark infringement, or some combination of that conduct) caused a specific portion of that harm. And although that might prove to be a causation issue on some of Infogroup's claims, as discussed in more detail below, that does not mean that the jury had no basis to make a reasonable and principled estimate of the amount of damage attributable to DatabaseUSA's unlawful conduct. Cf. Farley, 786 F.2d at 1352; Amerinet, Inc., 972 F.2d at 1494. Thus, Hofmann's testimony was properly admitted on those grounds.

         DatabaseUSA's alternative contention, that Hofmann's damages model is flawed in various respects, does not fare any better. Specifically, DatabaseUSA takes issue with several aspects of Hofmann's testimony, including his lack of in-depth knowledge about how the "overlap" factor was calculated, the fact that a high match rate is not "statistically significant", and the fact that Hofmann failed to account for several other factors in addition to the overlap factor he used to form his overall opinion. Filing 511 at 11.

         But those arguments go to weight, not admissibility. Bonner v. ISP Tech., Inc., 259 F.3d 924, 929-30 (8th Cir. 2001). Only when an expert's opinion "is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded." Id. That is not the case here. In fact, there is little doubt that the specialized knowledge of Hofmann--someone with over twenty years of experience in the finance industry and the sole damages expert presented by either party--would be helpful in determining the portion of DatabaseUSA's profits attributable to its unlawful conduct.

         That is not to say that DatabaseUSA's attacks on Hofmann's testimony do not make some valid points, but those points were presented to the jury through a rigorous cross examination--and the jury disagreed.[1] Seefiling 479 at 44-57. And DatabaseUSA's arguments, while they raise valid concerns, are insufficient to render the expert's testimony inadmissible or so unreliable as to remove all support for the jury's findings. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 514 (9th Cir. 1985).Accordingly, the Court will deny DatabaseUSA's Rule 59 motion with respect to Hofmann's damages model in its entirety.

         Next, DatabaseUSA claims that two separate, but related, areas of the testimony of Amit Khanna--president of Local Marketing Solutions at Infogroup--were not admissible. Filing 511 at 18. First, DatabaseUSA claims there was not sufficient foundation for Khanna to opine on what Infogroup's 2011 database looked like or how it was compiled. Filing 511 at 19. Second, DatabaseUSA claims that Khanna did not possess the requisite personal knowledge to testify about the 2011 seeding. Filing 511 at 19.

         In support of its former contention, DatabaseUSA points out that Khanna did not work at Infogroup at the time the 2011 database was in play. Filing 511 at 19. But that argument ignores the fact that Khanna also testified that he began working at Infogroup as a developer in 1997. Filing 476 at 249. And in that role, Khanna had significant involvement in the technical aspects of Infogroup's database. Seefiling 476 at 178-83. Specifically, Khanna testified that he "headed up [Infogroup's] database compilation group which was obviously responsible for compiling information and collecting all the -- the data from all the sources." Filing 476 at 181. And around 2006, Khanna was involved in managing data compilation in accordance with technological advancements. Filing 476 at 181-2.

         So, although it is true that Khanna was not involved in compiling the 2011 database itself, that does not mean he has no knowledge of how Infogroup generally gathered, selected, and arranged that information. And there is no evidence to suggest that the way Infogroup compiled its database meaningfully changed from 2006 until 2011. In other words, Khanna, who has over fifteen years of experience in data compilation techniques and database maintenance, demonstrated the requisite foundation to opine on how Infogroup generally arranged and compiled its 2011 database.

         And more fundamentally, Khanna specifically testified that following his return to Infogroup in 2013, he reviewed and analyzed the 2011 database for purposes of obtaining a valid copyright. Filing 476 at 241. In doing so, he identified and separated the portions of Infogroup's database that were original and deleted third-party work (i.e., non-copyrightable material). Filing 476 at 2421-2. And that necessarily required Khanna to review Infogroup's 2011 database, determine how its selection and arrangement process was original, and determine what portions should be excluded. So, contrary to DatabaseUSA's assertions, Khanna did have first-hand knowledge of what Infogroup's 2011 Database looked like, how it was compiled, and how that information was originally arranged.

         DatabaseUSA's second argument fares no better. Specifically, DatabaseUSA claims that Khanna had "no basis to testify as to the creation of Infogroup's 2011 'seeds' or the results of Infogroup's data 'audits.'" Filing 511 at 19. But those arguments miss the mark. Indeed, Khanna testified that he routinely works closely with the audit team because it is his responsibility to first identify issues before the audit team gets involved. Filing 476 at 199. And in that role, he reviewed the 2011 seeds with the team who did the audit, and used the 2011 seed list to conduct his own audit. Filing 476 at 203-04. The purpose of reviewing that information, Khanna said, was to be able to identify if any of those seeds were present in the portion of DatabaseUSA's database purchased by Infogroup. Filing 476 at 211. Thus, there was sufficient foundation for Khanna to testify to the 2011 seeds and results of the audit. And DatabaseUSA's Rule 59 motion will be denied on those grounds.

         (c) Spoliation Instruction

         Finally, DatabaseUSA claims that the spoliation instruction was improper. Filing 511 at 21. That argument is based on DatabaseUSA's contention that it did not intentionally destroy its database. Filing 511. DatabaseUSA raises several arguments that, it says, supports that contention. To begin, DatabaseUSA argues its 2014 database (and all previous versions) was lost due to its document retention policy--rather than the result of deliberate destruction. Filing 511 at 22. And because the information was innocently lost, DatabaseUSA claims the "information was [not] lost with the intent to prevent its use in litigation" as required under Fed.R.Civ.P. 37.

         But the Court has, at this point, considered that same argument on several occasions. Seefiling 343, filing 400. And the Court is still not convinced that DatabaseUSA's database was deleted by accident. At the time this litigation was commenced, DatabaseUSA had copies of its business database dating back to at least February 2012. Filing 343 at 5. And that was expected because, as Gupta testified, DatabaseUSA generally retains copies of its database for at least two years. Filing 287-1 at 160-1. Yet, by the time Infogroup began setting its plan to perform a complete audit of DatabaseUSA's databases in motion, only a 2015 version of the database (and subsequent versions of that database) existed. It is difficult to imagine a scenario where the database's destruction was a result of anything other than "the intent to prevent its use in litigation." Fed.R.Civ.P. 37 (advisory committee's note to 2015 amendment).

         And even if the Court were persuaded that the missing database was "accidentally" destroyed, that still would not alleviate the underlying problems of its absence. That brings the Court to DatabaseUSA's remaining arguments-each of which are equally unavailing. First, DatabaseUSA claims that the Court's reliance on Lewy v. Remington Arms Co., Inc., 836 F.2d 1104 (8th Cir. 1988) is misguided. And second, DatabaseUSA claims that Infogroup was not harmed by the absence of its entire 2014 database.

         DatabaseUSA's first argument is easily disposed of, so the Court will begin there. Specifically, DatabaseUSA insinuates that the Court plucked one "isolated" quote out of a "more nuanced" decision. Filing 511 at 22. And as a result of the Court's oversight, DatabaseUSA claims that the Court completely missed the underlying premise of Lewy--instructions to the lower court to "examine whether the defendant's document retention policy was instituted in bad faith." Filing 511 at 23. To that end, DatabaseUSA argues there is nothing in the record to suggest that DatabaseUSA's "routine deletion of data" was "instituted in bad faith," and as such, DatabaseUSA contends that the adverse instruction is improper under Lewy. Filing 511 at 23 (emphasis in original).

         But that argument does exactly what DatabaseUSA claims the Court did--it plucks one "isolated quote" from a decision while ignoring the remainder. Had DatabaseUSA continued to refer the Court to related portions of the opinion, it would have cited the following:

In cases where a document retention policy is instituted in order to limit damaging evidence available to potential plaintiffs, it may be proper to give an instruction similar to the one requested by the [plaintiffs]. Similarly, even if the court finds the [instituted retention] policy to be reasonable given the nature of the documents subject to the policy, the court may find that under the particular circumstances certain documents should have been retained notwithstanding the policy. For example, if the corporation knew or should have known that the documents would become material at some point in the future then such documents should have been preserved. Thus, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy.

Lewy, 836 F.2d at 1112 (citations omitted); see also Stevenson v. Union Pac. R. Co., 354 F.3d 739, 747 (8th Cir. 2004) (although retention policy was not unreasonable or instituted in bad faith, it was unreasonable and amounted to bad faith conduct for defendant to adhere to the principle in the circumstances of this case).

         In other words, Lewy specifically provided guidance for a scenario where despite the reasonableness of the instituted policy, the destruction of documents gives rise to an unfavorable inference. And that scenario is nearly identical to this litigation: DatabaseUSA was sued in February 2014, but following the initiation of this lawsuit, it destroyed the database knowing it would be highly relevant to this particular litigation. Simply put, even if DatabaseUSA destroyed the database pursuant to its routine retention policy, the post-litigation destruction-and circumstances surrounding its destruction-create a sufficiently strong inference of an intent to destroy it for purpose of suppressing evidence. Stevenson, 354 F.3d at 748.

         DatabaseUSA's second argument is peculiar at best. Indeed, that argument hinges on DatabaseUSA's contention that even without access to the 2014 database in its entirety, "Infogroup [] had sufficient access to DatabaseUSA's database to test its copyright claim." Filing 511 at 24. That is true, DatabaseUSA claims, because "there was absolutely nothing stopping Infogroup from using this data (or purchasing more) to conduct the necessary comparison." Filing 511 at 24. Yet, DatabaseUSA's entire argument--as discussed in more detail below--as to why, in its view, Infogroup's copyright claim fails as a matter of law, is premised on DatabaseUSA's contention that Infogroup was required to enter its entire database into evidence. Filing 508 at 7-8. That is required, DatabaseUSA argues, because to prove copyright infringement Infogroup must demonstrate "extensive verbatim copying" of the complete database. Filing 508 at 7-8. So, by DatabaseUSA's own logic, the Court is unsure how "Infogroup had sufficient access to DatabaseUSA's database to test its copyright claim" without the ability to forensically analyze the database. DatabaseUSA's Rule 50 motion will be denied on those grounds.

         As a final matter, DatabaseUSA also argues that the adverse inference was too broad because it "should have been tailored to Infogroup's (single) copyright claim." Filing 511 at 25. But in making that argument, DatabaseUSA has failed to point the Court to any, much less persuasive, authority requiring the adverse inference to be attached to a particular claim. See filing 511 at 25-26. For instance, it's common in any case presenting multiple claims for relief for particular evidence to be relevant to some claims, but not others. It would, however, be uncommon to give a limiting instruction for such evidence, in the absence of any suggestion that the evidence could be misused-and DatabaseUSA is in effect saying that such a limiting instruction should have been given here. Instead, Infogroup was entitled to press the adverse inference with respect to any claim to which the 2014 database would have been relevant, had it not been destroyed. So, the Court concludes the instruction was proper under Eighth Circuit precedent, and the Court will deny DatabaseUSA's motions on those grounds. Stevenson, 354 F.3d at 750.

         2. DatabaseUSA's Rule 50/59 Motions

         With those preliminary matters decided, the Court will address the substance of DatabaseUSA's Rule 50/59 motions. DatabaseUSA's Rule 50 motion generally alleges that there is no legally sufficient basis for the jury's verdict on the following categories of claims: (1) copyright infringement; (2) false advertising and mark infringement; (3) unjust enrichment and unfair competition; and (4) breach of the 2008 separation agreement. Filing 508 at 4. DatabaseUSA's Rule 59 motions similarly suggest that the jury's findings on each of those categories of claims is either excessive or against the clear weight of the evidence. SeeFiling 510 at 1. Because many of the arguments in support of those motions are based on similar issues of fact and law, the Court will generally consider those motions together.

         (a) Liability

         DatabaseUSA's arguments underlying each of those claims generally fall into one of two categories--liability or damages. The Court will first consider whether the jury's finding that DatabaseUSA is liable to Infogroup on each of the above claims is supported by the evidence presented at trial. From there, the Court will determine if DatabaseUSA's arguments surrounding Infogroup's damages model have any merit.

         (i) Copyright Infringement

         The jury was asked to determine whether Infogroup owns a valid copyright in its 2011 database, and whether DatabaseUSA's 2014 database copied protected expression in Infogroup's copyrighted work. Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir. 2003); Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 941 (8th Cir. 1992); seefiling 462 at 15. The jury determined that it did, and for the reasons set forth below, the Court finds that conclusion is supported by sufficient evidence. Filing 467.

         The parameters of copyright law are clear--original works are copyrightable, but facts are not. Feist Publ'ns, Inc. v. Rural Tel. Serv., Co., 499 U.S. 340, 344-45, (1991); Experian Info. Sols., Inc. v. Nationwide Mktg. Servs. Inc., 893 F.3d 1176, 1185 (9th Cir. 2018); Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 729-30 (8th Cir. 2002). At trial, the parties' arguments generally fell on opposite ends of that spectrum. That is, according to Infogroup, its database is not composed of facts--it is made of unique judgments. Filing 476 at 89; filing 477 at 171. And according to DatabaseUSA, Infogroup only sells facts-- not unique or creative judgments. Filing 476 at 149. But in reality, this case lies somewhere in between: Infogroup sells a selection and arrangement of facts that may be subject to copyright protection if there is evidence that the information is selected, coordinated, or arranged in a creative way. 17 U.S.C. § 101; see also Feist, 499 U.S. at 357.

         To begin, the kind of creativity that sufficiently establishes copyright protection in factual compilations is minimal. Feist, 499 U.S. at 348; Key Publ'ns, Inc. v. Chinatown Today Publ'g Enters., Inc., 945 F.2d 509, 512-13 (2d Cir. 1991); see Experian, 893 F.3d 1176, 1185. By way of example, the compilation of business names, addresses, and phone numbers of interest to the New York City Chinese-American community would be sufficiently creative to warrant copyright protection of a directory. Key Publ'ns, 945 F.2d at 512-13. And the compilation of data from a variety of sources, including catalogue purchase data, cable company records, real estate deeds, and warranty cards signed by consumers at retail stores is also sufficiently creative to warrant copyright protection. Experian, 893 F.3d at 1185.

         But such compilations of factual information receive only limited protection. 17 U.S.C. § 103(b); Feist, 499 U.S. at 359. That means that a compiler may freely use the facts contained in a compilation when preparing a competing work, as long as the competing work does not exhibit the same selection or arrangement. See Feist, 499 U.S. at 349, see also Kregos, 937 F.2d at 702, 709. So, the question is whether there was sufficient evidence from which a jury could conclude that Infogroup's compilation of factual information was sufficiently creative to warrant copyright protection. Feist, 499 U.S. at 357.

         According to DatabaseUSA, there was no way for the jury to determine whether the same selection or arrangement was used by both compilation companies. That is true, DatabaseUSA alleges, because Infogroup failed to introduce evidence of what its database actually looked like in November, 2011. Seefiling 508 at 7-13. And that oversight, DatabaseUSA argues, is not insignificant because the jury had no way to determine how, if at all, the database was creatively arranged. See filing 508 at 7. In support of that argument, DatabaseUSA extensively relies on the Ninth Circuit's decision in Experian. 893 F.3d at 1176.

         But that argument is misplaced. The Experian court determined that the database in that case was entitled to copyright protection. Experian, 893 F.3d at 1176. More specifically, the court noted that "Experian's selection process in culling data from multiple sources and selecting the appropriate paring of addresses with names before entering them in the database involves a process of at least minimal creativity." Id. at 1185.

         And that process is nearly identical to the way Mike Iaccarino and Amit Khanna described Infogroup's selection process. Iaccarino, Infogroup's CEO, testified to Infogroup's "merge/purge" process. Specifically, he explained,

if you think about a business record, we might get that from multiple sources. We might get it from the Yellow Pages. We do not accept that as fact, okay? We do not accept any particular source as fact because we're going to get - we could get Acme Plumbing and -- on Main Street in Omaha. That could show up 50 different times when we compile all those sources before what we do -- what we call the merge/purge. We take all that data, we merge it and then we purge bad records. . .

         Filing 475 at 60. In other words, according to Iaccarino, once Infogroup obtains factual information, that information is verified--either by making a phone call to the business or by comparing it to other information, and Infogroup's employees choose to include or exclude that information from the database. Filing 475 at 60; 745 at 61. To that end, Iaccarino also testified that:

[m]ost - particularly small businesses, their websites are inaccurate and their information is wrong. So, you know, just taking information from a website is not considered best practices. So we have several different ways we can verify it. Re-calling, looking at -- looking at the website, looking at other pieces of information we might have and then we make a decision ...

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