Not what you want as a response to your threat letter: FairTest, an
organization that often challenges reliance on SAT scores in
education, received a threat letter from the College Board, which runs
the SATs, claiming that the scores posted on FairTest's site infringed
the College Board's copyright. FairTest responded. Making claims on
behalf of rival ACT might be one of the most interesting instances of
overreaching I've seen in a while.
What's sad is that the claim that a score -- a single number, or even
a series of them -- is protected by copyright is not generally
ludicrous, though in this case I think it is. But some cases have held
that prices are "compilations" and thus protected by copyright. If a
number is produced by the exercise of skill and judgment --
determining, for example, how to aggregate cars to determine an
average price for a certain make and model in a certain geographic
area -- then a claim of copyrightability passes the laugh test, even
though copyright isn't supposed to exist for words and short phrases.
I suspect the College Board is prepared to argue that, like prices,
its categories (scores by race, gender, family income) are produced
not mechanically but by making decisions -- about, for example, how to
define "race" ("multiracial" is an option, as is "other," as is
"prefer not to respond," as is no "response") and where to break
income levels ($18,000 or $20,000?) -- and therefore the resulting
numbers are the product of the College Board's creative judgment.
I'd be inclined to call these numbers unprotectable "facts." Though
the fact/expression line is a tricky one, these are not particularly
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