Copyright and Information Policy

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On March 27, 1991, a unanimous Supreme Court issued its opinion in Feist Publications v. Rural Telephone Service Company, holding a white pages telephone directory uncopyrightable, and surprised copyright lawyers and their clients throughout the United States. The Court discarded an idiosyncratic, but unbroken line of copyright authority with the observation that the lower courts that had decided those cases "misunderstood the statute." A century of settled case law on copyright infringement of maps, data bases, and directories had extended de facto copyright protection to facts; in Feist, the Supreme Court held squarely that facts could not constitutionally be the subject of copyright protection. The furor the case caused is curious, in the sense that copyright has in theory excluded facts from the scope of its protection since the earliest American case to address the issue. Black letter law on the issue is unambiguous; copyright protects expression, but not information.