Feist V. Rural - Implications

Implications

See also: Idea-expression divide and Threshold of originality

The ruling has major implications for any project that serves as a collection of knowledge. Information (that is, facts, discoveries, etc.), from any source, is fair game, but cannot contain any of the "expressive" content added by the source author. That includes not only the author's own comments, but also his choice of which facts to cover, his choice of which links to make among the bits of information, his order of presentation (unless it is something obvious like an alphabetical list), any evaluations he may have made about the quality of various pieces of information, or anything else that might be considered "original creative work" of the author rather than mere facts.

For example, a recipe is a process, and not copyrightable, but the words used to describe it are; see idea-expression divide and Publications International v Meredith Corp. (1996). Therefore, you can rewrite a recipe in your own words and publish it without infringing copyrights. But, if you rewrote every recipe from a particular cookbook, you might still be found to have infringed the author's copyright in the choice of recipes and their "coordination" and "presentation", even if you used different words; however, the West decisions below suggest that this is unlikely unless there is some significant creativity carried over from the original presentation.

Feist proved most important in the area of copyright of legal case law publications. Although one might assume that the text of U.S. case law is in public domain, Thomson West had claimed a copyright as to the first page citations and internal pin-point page citations of its versions of court opinions (case law) found in its printed versions of the case law ("West's citation claims.") West also had claimed a copyright in the text of its versions of the case law, which included parallel citations and typographical corrections ("West's text claims.") The text claim would have barred anyone from copying the text of a case from a West case law reporter, since the copied text would include West enhancements to which West claimed copyright.

In a pre-Feist case, West's citation copyright claim had been affirmed by the U.S. Court of Appeals for the Eighth Circuit in a preliminary injunction case in 1986 brought by West against Mead Data, owner of Lexis. West v. Mead (1986); however, in a case commenced in 1994 in the U.S. District Court for the Southern District of New York, the U.S. Court of Appeals for the Second Circuit found Feist to have undermined the reasoning in West v. Mead. West's citation claims were challenged in 1994 by legal publisher, Matthew Bender & Company and by a small CD-Rom publisher HyperLaw, Inc. HyperLaw intervened, joining Matthew Bender in the citation challenge and separately challenging West's text copyright claims. West was found by the Second Circuit in 1998 not to have a protectable copyright interest in its citations; neither to the first page citations nor to its internal pagination citations. See Matthew Bender v. West, Citation Appeal. The Second Circuit thereby rejected the 1996 determination of a Minnesota district court in Oasis Publishing Co. v. West Publishing Co., 924 F.Supp. 918 (D. Minn. 1996), that the outcome of West is not changed by Feist.

In the same case, but in separate decisions in which Matthew Bender was not involved, HyperLaw successfully challenged West's text claims. Judge John S. Martin ruled in favor of HyperLaw against West in a U.S. District Court decision in May, 1996. Matthew Bender v. West, No. 94 Civ. 0589, 1997 WL 266972 (S.D.N.Y. May 19, 1997), aff'd, 158 F. 3d 674 (2nd Cir. 1998), cert. denied sub. nom. West v. Hyperlaw, 526 U.S. 1154 (1999). West lost to HyperLaw in its appeal to the U.S. Court of Appeals for the Second Circuit and certiorari was denied by the U.S. Supreme Court.

After the 1986 West v. Mead decision, Mead Data and Lexis were acquired by Reed Elsevier, a large English-Dutch based publisher. During the Matthew Bender v. West case, Reed Elsevier and Matthew Bender entered into a strategic relationship, culminating in Reed Elsevier's acquisition of Matthew Bender in 1998, just after the Second Circuit appeals were argued. Reed Elsevier now was on the side of West and filed an amicus brief opposing HyperLaw and supporting West. Thus, although the name of the case might suggest that Matthew Bender challenged West on the text claim, by the middle of the case Matthew Bender was on the side of West on the text issue. Reed Elsevier's support of West's claims to a copyright in text was consistent with the initiatives, discussed below, to sidestep Feist by implementing database protection, through legislation and treaties discussed below. Similarly, during the case, West was acquired by the Canadian based international publisher, the Thomson Corporation.

Another case covering this area is Assessment Technologies v. Wiredata (2003), in which the Seventh Circuit Court of Appeals ruled that a copyright holder in a compilation of public domain data cannot use that copyright to prevent others from using the underlying public domain data, but may only restrict the specific format of the compilation, if that format is itself sufficiently creative. Assessment Technologies also held that it is a fair use of a copyrighted work to reverse engineer that work in order to gain access to uncopyrightable facts. Assessment Technologies also created new law, stating that it is a copyright misuse and an abuse of process if one attempts to use a contract or license agreement based on one's copyright to protect uncopyrightable facts.

In the late 1990s, Congress attempted to pass laws which would protect collections of data, but these measures failed. By contrast, the European Union has a sui generis (specific to that type of work) intellectual property protection for collections of data.