It appears that a database designer had municipalities plug in information about real estate properties into the designer's database. The compilation of data is likely copyrightable (because of the categories chosen by the designer), but the designer is trying to use that compilation copyright (and the contracts it has signed with the municipalities) to block anyone from gaining access to the admittedly public domain data contained in the database -- data that wasn't even collected by the database designer. There's no other way to get this data.
Posner deftly (and very quickly indeed -- pay attention, law reviews) dismisses each claim brought by the database designer:
From the standpoint of copyright law all that matters is that the process of extracting the raw data from the database does not involve copying Market Drive, or creating, as AT mysteriously asserts, a derivative work; all that is sought is raw data, data created not by AT but by the assessors, data that are in the public domain.
No infringement here. And even if the raw data were inextricably intertwined with the database design, or compilation of categories,
if the only way WIREdata could obtain public-domain data about properties in southeastern Wisconsin would be by copying the data in the municipalities’ databases as embedded in Market Drive, so that it would be copying the compilation and not just the compiled data only because the data and the format in which they were organized could not be disentangled, it would be privileged to make such a copy, and likewise the municipalities. For the only purpose of the copying would be to extract noncopyrighted material, and not to go into competition with AT by selling copies of Market Drive.
And, finally, a nice discussion of a not-frequently-used doctrine: copyright misuse. As Posner puts it, "To try by contract or otherwise to prevent the municipalities from revealing their own data, especially when, as we have seen, the complete data are unavailable anywhere else, might constitute copyright misuse."
The argument for applying copyright misuse beyond the bounds of antitrust, besides the fact that confined to antitrust the doctrine would be redundant, is that for a copyright owner to use an infringement suit to obtain property protection, here in data, that copyright law clearly does not confer, hoping to force a settlement or even achieve an outright victory over an opponent that may lack the resources or the legal sophistication to resist effectively, is an abuse of process.
Posner doesn't even need to get to that claim (not that the somewhat hapless data seeker made it), because he's already gotten rid of the claims presented. He finishes off by pointing out that sui generis database protection isn't relevant (even if we had such a law), because the designer didn't gather the data, and there's no possible breach of contract claim -- because the entity seeking access to the data isn't a party to any agreement with the designer.
A victory for rationality. And a warning to those who would use copyright claims to convert otherwise freely-available material into private property.