Bell South Advertising & Publishing Corp. (“BAPCO”) publishes a classified “yellow pages” advertising directory for the Greater Miami area. The directory is organized into an alphabetical list of business classifications and each business subscriber is listed under one heading at no charge. Subscribers may pay for listings under additional headings or for a display ad.
Donnelley Information Publishing, Inc. began proposing and selling classified advertisements for a competitive directory. Donnelley generated its sales lead sheets for soliciting advertisers for its competitive directory by creating a database of subscriber contact information and business classification from information copied from the BAPCO directory. Donnelley did not copy the text or graphic material from advertisements in BAPCO’s directory, or the layout or typeface of the material.
BAPCO alleged it had engaged in several “acts of selection” in compiling its listings. For example, BAPCO determined the geographic scope of its directory, and the closing date after which no changes would be accepted, it “selected” its listings by requiring subscribers to have a business telephone number, and it relied on several marketing techniques, such as determining the number of free listings offered to each subscriber, selecting which customers to make an onsite sales call to, selecting the date when the sales campaign would begin, or selecting the procedure for recommending the purchase of multiple listings.
How should the court rule on BAPCO’s claim of infringement?