Re: Comment on Feist

On Wed, 12 Feb 1997 23:12:45 +0000, David Crosby wrote:
> >
> > 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.
>
> 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.
>
> David Crosby

It is my understanding that, for purposes of determining copyright infringements, the "fake" names in directories, or false information in maps, are treated in two different ways in two different parts of the copyright analysis.

    First, in order to determine whether the accused person copied from the first work, these "fakes" help to show the copying. I.e., they negate a claim of independent original creation, and help to prove actual "copying from" the first work. In this regard, note that copyright law is a law to prevent "copying". Independent creation of a virtually identical work (e.g., two nearly identical photographs of the Lincoln Memorial) does not violate copyright rights.

    Second, for purposes of deciding whether the copying amounts to illegal appropriation of the expression of the author, "fake" names are treated as if they are "true." I.e., if you put forward information as if it is true, courts say that the public is entitled to use it as if it is true.

        Bob Kreiss
        
************************************************************
*  Robert A. Kreiss                    Phone: 937-229-2256 *
*  Professor of Law                      Fax: 937-229-2469 *
*  Director, Program in Law and Technology                 *
*  University of Dayton School of Law                      *
*  Dayton, OH  45469-1320                                  *
*                                                          *
*  For information on the intellectual property and        *
*  cyberspace law program at the University of Dayton,     *
*  see   http://www.udayton.edu/~lawtech                   *
************************************************************