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Feist Publications, Inc. v. Rural Telephone Service Co., Inc. (US Supreme Court, 499 US 340, 1991)


Rural Telephone Service Company provides a telephone service for Kansas, and every year it publishes two phone directories; the canonical white pages and yellow pages listings. Rural gets the information for its listings from records of its subscribers.

Feist Publications is a printing company which specialises in making large area phone directories. Its listings, just like those of Rural's, are available for no charge to all who ask. Feist gets the information for its listings by going to each of the dozen or so phone companies in northern Kansas and asking them for the data.

Because both directories are free and handed out to people like sweets, Rural and Feist both compete for advertising in their yellow pages, and as such, both like to have listings which are as complete as possible, in order to make businesses more likely to place adverts in their directories.

What happened

Out of the 11 phone companies of whom Feist asked phone listing information, Rural telco were the only ones who refused to hand it over. This thrust Feist Publications into a dilemma: should they leave out Rural's listings, or should they just take them without permission?

You can probably guess.

Feist took Rural's entries, and stripped all of those which lay outside their area of coverage. Then they checked some of the data, and added to the incomplete parts. Feist were caught because about 3% of their 1983 listings were exactly the same as Rural's listings for the previous year, and also because four fake entries which Rural had deliberately put in were also included in Feist's listings.

When Rural found out, it took Feist to Kansas' District Court, whining that Feist shouldn't have stolen their directory listings. Feist countered by stating that obtaining the information for themselves would cost too much money, and that the information wasn't covered by copyright because copyright doesn't apply to mere facts. Initially the court ruled in Rural's favour, the justification being that telephone directories were covered by copyright.

However, this decision wasn't really taken seriously, and the case seemed to remain open. Eventually, the case hinged on some key questions. Are compilations of facts covered under copyright? If so, which parts? At what point does copying become infringement? The first two questions were answered by having a close look at copyright law; though the facts themselves are not copyrighted, the way in which they are arranged and presented is, as is any additional content the compiler(s) have written. The third question was a little trickier.

To demonstrate copyright infringement, you need to be able to show 2 things:

  1. ownership of the compilation's copyright
  2. copying of the original parts of the compilation
Feist agreed that Rural's directory, as a whole, was covered by copyright. They disagreed on the second point, however. Feist said that they only copied facts from Rural, and that facts are not copyrightable. The court agreed with Feist, and decided that not even Rural's presentation of the facts was protected, since they had only given it in the most basic format. To quote from the case syllabus:

"Rural's selection of listings could not be more obvious: It publishes the most basic information; name, town, and telephone number - about each person who applies to it for telephone service. This is 'selection' of a sort, but it lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. Rural expended sufficient effort to make the white pages directory useful, but insufficient creativity to make it original."

The implications

Basically, the outcome of the case clarified a fairly murky part of copyright law. As I've said several times, copyright law does not apply to facts, but it does to compilations of facts. This is because copyright law only applies to works which have been created and not discovered. Facts are not created but discovered. Compilations of facts have been created through a process of selection, omission, addition and presentation of facts, which themselves are not copyrighted. Note that actions and stuff you can do comes under the category of facts - this means that not only is your Dorling Kindersley encyclopaedia copyrighted, but so are you ?n*x manuals (unless they're public domain!), cookbooks and guides on how to fix your car. This also applies to E2 - even though some writeups are factual, they are covered by copyright because they have been edited by the author.

An interesting point

16/03/2005: spiregrain says re Feist Publications, Inc. v. Rural Telephone Service Co., Inc. (1991): given that some of the entries were fake, they weren't facts, but fiction- should they therefore have been (c)able?

Fair point. I'm not a lawyer, so I can't be decisive on this point, but I would reason that since the fake listings are such a small proportion of the overall work (four telephone listings out of thousands), copying them wouldn't be sufficient grounds for claiming copyright infringement.

The contents of this writeup are in the public domain, except for the quote from spiregrain.

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