After Feist

Jessica D. Litman, University of Michigan Law School


On March 27, 1991, the United States Supreme Court handed down its opinion in Feist Publications, Inc. v. Rural Telephone Service Co., upsetting a settled, if uneasy, understanding of the scope of copyright protection for databases and other compilations of fact. The Register of Copyright's remark that "the Supreme Court dropped a bomb" when it issued the Feist opinion soon became the bon mot quoted by everyone to describe the occasion. By grounding its opinion in the Copyright Clause of the Constitution, rather than in the copyright statute, the Court appeared to foreclose the possibility that Congress could repair damage done in Feist by amending the copyright law. Few observers, however, seem content to leave the perceived damage unrepaired. Instead, they are calling for a statutory fix based on some other congressional power, most probably the Commerce Clause.