Re: Comment on Feist

> I agree that it is unfortunate that the Court did not address this
> point. One possible rationale for the result is a copyright misue or
> unclean hands argument, i.e., that by "hiding" copyrighted material
> (four fake names) in its directory, Rural is improperly attempting to
> use its copyright on the fake names to acquire a monopoly to the
> unprotected names (facts) which Feist is otherwise permitted to copy.

But on a more fundamental level, the telephone listing represented combination of factual and fictional elements. So what you are saying is that there is no protection for factual information, no matter how it is organized and that the work includes a combination of factual and fictional elements, the author loses the rights to fictional elements because of the combination.

I have trouble reconciling this position with the position that maps are copyrightable. As recall from law school, the way this conclusion was verified was based on the facts that after the first copyright acts were passed, the framers permitted maps to be registered. So, from Feist it follows that the more visually accurate a map is (and less creative in the depiction), the less protectable it is.

What about an aerial photo? Could I get away with arguing that most of the "creative choices" of the photographer were functional:   The exposure settings (f-stop and shutter speed) are determine by an exposure meter - maybe the camera had an automatic setting?

   The point of view - essentially down, dictated by gravity, was it picked at random? Is this more or less creative than the four fake names?

> Even assuming that such a holding is implicit in Feist, however,
> it does not completely eliminate the utility of inserting "seeds" to
> spot copying. Such seeds can still be used to prove the defendant's
> access to the copyrighted material, which is necessary to raise an
> inference of copying if that issue is contested. And, of course, if
> it found that the selection, coordination or arrangement of preexisting
> material is sufficiently original, the presence of seeds in the
> allegedly infringing work contributes to substantial (or near-verbatim)
> similarity.

In my opinion, the essence of copyright is copying. It is a means to an end. To promote the progress of science by preventing copying. The listing facilitated communication, a noble cause in the age of the information super highway. To the extent that fake names were copied, Fiest should be liable or the court should have at least provided an analysis that concluded that the amount copied was insignificant.

Regards,
David Crosby
dcrosby[_at_]usa1.com
dcrosby[_at_]lappinkusmer.com Received on Thu Feb 13 1997 - 03:53:18 GMT