A similar case that comes up every few years has to do with copyrighting the phone book. The publisher contends that while the information contained within it is indeed not copyrightable, the arrangement and ordering of it is, and so you can't just recopy it and republish it for free. The wannabe publisher says that it's free information in no meaningful order, so they can republish it all they want. And then they go to court, and whatever happens happens...

Another example (and similar to the one you mention) is Carl Malamud's public.resource.org - he's taking WestLaw's court records, removing the copyrighted bits, and publishing them himself online. The problem then becomes how to cite them, since WestLaw's numbering system is somewhat of a de factor standard.

All-in, you're quite right - this is nowhere near as clear as the article thinks it is, and it's certainly not a domain that I'd rely on a non-lawyer's opinion for.

And then there's the wrinkle of trademarks. Look and Feel is certainly in the realm of trademarks, and I'm sure that 37 signals has their designs trademarked, and their logos, and "getting real", and everything else they've ever created.

Intellectual property laws are interesting. It's a giant game, moreso than crime or other torts, since everything is made up with little basis in physical reality. I'm not opposed to the idea, but it's fun seeing the law operate in a self-created vacuum.