FINE, THOSE ROUTING NUMBERS SUCKED ANYWAY, SEE IF WE CARE

Effluvia

There are few things more delightful to me than capable pro bono counsel putting a censorious bully in its place. The firm Martin & Associates of Vermont has delighted me today.

Our story begins back in June. As Mike Masnick at TechDirt reported, the American Banker's Association and its law firm, Covington & Burling, threatened a blogger named Greg Thatcher, who had compiled an online list of routing numbers for banks. Those numbers are publicly available on the Federal Reserve's web site. The ABA says it created routing numbers and doing so took "creativity" and Greg's infringing their copyright. This argument is like the Post Office suing you for posting a list of zip codes.

In stepped Andrew Delaney of Martin & Associates. Representing Greg Thatcher pro bono, Delaney sent one of the very best responses to a bogus and censorious threat I have ever seen, folding together wit, whimsy, forceful legal arguments, and cheerful abuse of footnotes. It received wide and justifiable praise. Go read it. This is my favorite part:

If you do feel it's necessary to sue our client, we are open Monday through Friday from 8:00 A.M. to 6:00 P.M. and We have lollipops for people who serve process. So if you do file a complaint and send someone over with a summons, please have them wear something with a bit of purple . . . we all like purple. We eagerly await your reply.

I write today with two delightful updates. First, Martin & Associates waited for some time for a reply. One must wait when dealing with a large and venerable firm like Covington & Burling, the sort of place where the stick up their ass has a stick up its ass. Eventually curiosity quite overcame the better angels of Andrew Delaney's nature and he sent this letter to the ABA's attorney Nigel Howard:

It has been just over two months since we last wrote. We expected a response but none has been forthcoming. We have therefore advised Mr. Thatcher to reestablish the routing-numbers section of his website. As a courtesy, we wanted to let you know.

We have not received any response or counter analysis, and we cannot conceive of any reasonable explanation why these identifYing numbers might fall within copyright protection's purview. If you have such an explanation, feel free to share.

If you're ever in Vermont, please stop in so we can chat. Lunch is on us.

This is a very polite lawyerly way of telling someone they are full of shit.

Today, Mr. Howard finally responded to Mr. Delaney's letter. Did he respond to Mr. Delaney's copyright arguments or meet the challenge to support his position? He did not. This was the sum total of his argument about the ABA's copyright:

The American Bankers Association's position has not changed and your client's re-posting of the routing function on his website is at his own risk.

As I've mentioned before, this is known as the Canadian Girlfriend school of legal argumentation.

Mr. Howard goes on to concern troll a bit:

In addition to infringing the ABA's copyright, Mr. Thatcher's actions may put the public at risk. We have found instances where unauthorized sites are disseminating inaccurate information.

Mr. Howard does not cite any inaccurate information on Mr. Thatcher's site. He simply says that there is inaccurate information out there, and that's bad, and mumble mumble [trails off awkwardly].

Even the data in the FedWire and FedACH files that are currently available from the Federal Reserve website are not entirely up to date.

If you're keeping score at home, the ABA just admitted that the data on the Federal Reserve's website may not be accurate, and they are responding by . . . hiring Covington & Burling to pester a blogger.

Mr. Howard also accuses Thatcher of misusing information from the Federal Reserve to populate his website:

The Federal Reserve website states that the information may not be sold, re-licensed or otherwise used for commercial gain. Your client is using the ABA Routing Numbers for his own commercial gain, namely to generate advertising revenues, in violation of this restriction.

Now, Mr. Howard doesn't say that he's representing the Federal Reserve now in addition to the ABA, so I'm sure he's just saying that to be helpful.

Mr. Howard concludes:

The ABA is committed to providing only the most accurate information possible on Routing Numbers and is continuing to take steps to address this problem.

That's the sound of a bully slinking away.

Kudos to Andrew Delaney and Martin & Associates.

Last 5 posts by Ken White

37 Comments

35 Comments

  1. EH  •  Nov 5, 2013 @4:50 pm

    To his credit, Mr. Delaney is a past president of his local Rotary Club, and appears not to have had a stroke…lately.

  2. EH  •  Nov 5, 2013 @4:55 pm

    It's true, I'm an idiot!

  3. Rhonda Lea Kirk Fries  •  Nov 5, 2013 @5:02 pm

    "Your client is using the ABA Routing Numbers for his own commercial gain, namely to generate advertising revenues, in violation of this restriction."

    I've started using Disconnect instead of DoNotTrackMe, so maybe my new tool is defective or something–it didn't find any ads or trackers on Thatcher's site. Then again, neither did AdBlock Plus. Perhaps it too is broken.

    [wanders off to lodge various support requests]

  4. Alan D.  •  Nov 5, 2013 @5:04 pm

    Too bad there wasn't a routing number for the Bank of Streisand. Amirite?

  5. L Nettles  •  Nov 5, 2013 @5:18 pm

    I admire a lawyer who puts a footnote on his own name.

  6. Fasolt  •  Nov 5, 2013 @5:59 pm

    The next time I'm in Vermont, I'm stopping by their office wearing a bit of purple. Hey, free lollipops.

  7. nlp  •  Nov 5, 2013 @6:55 pm

    That letter just made getting out of bed this morning all worthwhile.

  8. Tim!  •  Nov 5, 2013 @7:02 pm

    @Rhonda: There's 1 google ad on the page.

  9. SPQR  •  Nov 5, 2013 @7:02 pm

    Ooooo, in addition to our other lame arguments, your client is using the data on the Federal Reserve site in violation of an unenforceable faux "restriction"….

  10. Sterling Archer  •  Nov 5, 2013 @8:26 pm

    Awesome. I've actually been following the blogger for a bit because I sometimes need a list of routing numbers for my work.

  11. Grifter  •  Nov 5, 2013 @9:09 pm

    The banks (or at least my bank) list their routing numbers on their website.

    And, I hear tell that they print them on every check!

  12. Rhonda Lea Kirk Fries  •  Nov 5, 2013 @9:17 pm

    @Tim

    Huh. Even with everything turned off, I still can't find it.

  13. KronWeld  •  Nov 5, 2013 @9:55 pm

    Nice, but I'm not sure they are copyright lawyers. Sounds like they have not heard of the Berne Convention, "…the United States became a member of the Berne Convention on March 1, 1989." … "the United States changed its law on March 1, 1989, to make the use of a copyright notice optional."

    From http://www.copyright.gov/fls/fl100.html

  14. andrews  •  Nov 5, 2013 @10:17 pm

    Berne Convention

    Last I heard, 1909 and 1911 pre-date the convention; publication without the notice may well have allowed some combinations of 4 digits to slip into the public domain. For at least some years, the banksters would need to find the author of those numbers and have him re-assign the copyrights to them.

  15. Ibidem  •  Nov 5, 2013 @10:27 pm

    "Since routing numbers have been around since 1911…that would seem problematic for your position. We understand your argument that some new routing numbers are copyright-protected…"

    In other words, only things first published after March 1, 1989 are automatically copyrighted. Most routing numbers are not included in that, even if they were copyrightable.

  16. Michael K.  •  Nov 5, 2013 @11:14 pm

    Footnote #7 FTW

  17. Rob  •  Nov 6, 2013 @12:31 am

    Sterling Archer • Nov 5, 2013 @8:26 pm

    Awesome. I've actually been following the blogger for a bit because I sometimes need a list of routing numbers for my work.

    I thought Cyril was the accountant…

  18. rxc  •  Nov 6, 2013 @1:03 am

    Back round 1993, when I worked for a Federal Agency, and all documentation and regulations existed only on paper, one of our more ambitious managers sold (!) the right to digitize our own set of regulations to a private company. They were given the exclusive right to digitize the regs and sell copies on CDs. I heard about it when I started up a project to make digital copies of the regs available on the WWW, which was just coming into existence.

    The manager who made the deal insisted that this private company had the exclusive right to digital regulations, for at least 3 years, and I had to stop that part of the project. I never found out what happened to the deal when Newt Gingrich had the Library of Congress digitize everything and make it available for free. I wonder if the company sent Newt a nasty letter…

  19. Tom  •  Nov 6, 2013 @1:14 am

    Waaaaaaaaaaaaaaaaaay off topic, but HOLY FUCKING SHITBALLS! Clark! Ken! Ken's adorable kids! Via Angus! Somebody, but fucking somebody! Get this link to David asap:

    http://www.cartoonbrew.com/cartoon-brew-pick/the-elegant-gentlemans-guide-to-knife-fighting-by-doug-bayne-ben-baker-and-trudy-cooper-90516.html

  20. Anony Mouse  •  Nov 6, 2013 @3:40 am

    I know, right? I read this letter and was all like, No way!

  21. garrick  •  Nov 6, 2013 @6:17 am

    As usual, your post made my morning. Thanks for the share!

  22. Jamie  •  Nov 6, 2013 @6:34 am

    I'm from Montpelier, VT and this made my day, thanks Ken! :)

  23. Anonymous Coward  •  Nov 6, 2013 @7:56 am

    One must wait when dealing with a large and venerable firm like Covington & Burling, the sort of place where the stick up their ass has a stick up its ass.

    This is the best line I've read so far this week. Thanks :)

  24. CW McCall  •  Nov 6, 2013 @8:30 am

    This makes me happy. I actually sent an email to Ken about this in July, but it looks like he was already on the case and aware. I use(d) this site extensively at work and was pretty bummed when I saw the news about the bully tactics. Pretty pumped that things will get sorted out for the better.

    Also, the letter is amazeballs.

  25. Rhonda Lea Kirk Fries  •  Nov 6, 2013 @10:49 am

    Amazon just shipped five pounds of YumEarth organic lollipops to Andrew Delaney.

    That should keep the process servers busy for a while.

  26. Palimpsest  •  Nov 6, 2013 @12:51 pm

    So isn't the ABA violating the cited Federal Reserve statement that the numbers may not be used for gain by claiming them as their property? It's handy when the opposition provides the evidence that they are not entitled to what they are claiming is theirs.

  27. Robb Shecter  •  Nov 6, 2013 @1:08 pm

    "This argument is like the Post Office suing you for posting a list of zip codes."

    That's pretty close to what just happened to me: the USPS asserted that the zip codes are trade secrets and rejected my FOIA request for a list: http://www.weblaws.org/blog/2013/11/usps-zip-codes-are-commercially-sensitive-trade-secrets/

  28. DRJlaw  •  Nov 6, 2013 @1:11 pm

    Feist and "words and short phrases" are essentially the only two things that you need to know here.

    Feist — Supreme Court decision that held that facts and mere compilations of facts are not copyrightable subject matter. While a particular selection and arrangement of fact can include expression worthy of copyright, that protection is thin and good judges will be very interested in separating creative expression from attempts to protect mere "sweat of the brow" effort.

    "words and short phrases" 37 C.F.R. 202.1(a) and its predecessors have exluded names, titles, and slogans and the like, no matter how pithy, from copyright protection since well before the 1976 act. You can argue whether that regulatory policy is sound, but it is so.

    Southco Inc. v. Kanebridge Corp., 390 F.3d 276 (3rd Cir. 2004), and ATC Distribution Group Inc. v. Whatever It Takes Transmissions & Parts Inc., 402 F.3d 700 (6th Cir. 2005), relied upon the regulation in denying copyright infringment claims relating to part numbers. Routing numbers are no different.

    Delancy and Pivar-Federici (the authors of the letter) appropriately dug up Feist but didn't dig up the "words and short phrases" exclusion. Nor raise the fact that you must register the copyright before bringing a suit for copyright infringement. Probably too much geekery, but I would have loved to see an alternate closing such as "If you do feel it's necessary to sue our client, please have your complaint with attached copyright registration certificate served upon us by flying pig. We're confident that anyone able to obtain a registered copyright in a 9 digit number could easily fulfill such a comparatively simple request."

  29. marvo  •  Nov 6, 2013 @6:14 pm

    In addition to infringing the ABA's copyright, Mr. Thatcher's actions may put the public at risk. We have found instances where unauthorized sites are disseminating inaccurate information.

    Perhaps a letter telling them that if they have instances of inaccuracies and have not sent them along leaves them liable for the 'public at risk' might elicit a response?

  30. Dr. Ken Noisewater  •  Nov 6, 2013 @6:57 pm

    "This argument is like the Post Office suing you for posting a list of zip codes."

    Perhaps you spoke too soon…

    http://www.weblaws.org/blog/2013/11/usps-zip-codes-are-commercially-sensitive-trade-secrets/

  31. SPQR  •  Nov 6, 2013 @8:59 pm

    Noisewater, a ridiculous response by USPS as the aggregation of all zip codes can't be a tradesecret – it does not meet the elements of trade secret law.

  32. SPQR  •  Nov 6, 2013 @9:02 pm

    rxc, so your boss never heard of 17 USC 105?

  33. Steve Worona  •  Nov 6, 2013 @11:23 pm

    Ken, who gets credit for the filename NigelNigelWhereforeArtThouNigel.pdf on Andrew Delaney's "we expected a response" letter to Nigel Howard? If Delaney, another +1 for him. If you, also nice touch.

  34. DRJlaw  •  Nov 7, 2013 @6:44 am

    @SPQR

    The prohibition on copyright for works of the federal government is not as clear cut as that. Contractors and employees of contractors can produce copyrightable works and be required to assign the copyrights to the government under the contract.

    Also, the Federal Reserve is a messy system with a core that is essentially a Federal agency, but component Federal Reserve Banks that have a weird hybrid legal status (see summary of Lewis v. U.S.). This considerably complicates matters.

  35. Derrick Coetzee  •  Nov 10, 2013 @5:04 am

    This has some parallels to a case I was involved in where I received a demand letter for republishing non-copyrightable works (in this case, digitizations of public domain paintings, details at https://en.wikipedia.org/wiki/National_Portrait_Gallery_and_Wikimedia_Foundation_copyright_dispute). I was fortunate enough to also have pro bono representation. Copyright is expansive enough as it is without people trying to claim rights to things that are plainly not copyrightable.

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