Feist Publications, Inc. v. Rural Telephone Service Co.

Based on Wikipedia: Feist Publications, Inc. v. Rural Telephone Service Co.

In the small town of Lenora, Kansas—population barely above five hundred—a local telephone cooperative did something so mundane it hardly seemed worth mentioning. They published a phone book. An alphabetical list of names, addresses, and phone numbers for everyone in their service area. Nothing fancy. Nothing creative. Just the bare facts that any phone company was legally required to compile.

That phone book would spark a Supreme Court case that fundamentally rewrote what it means to own information in America.

The Phone Book Pirates

Rural Telephone Service Company served the sparsely populated northwest corner of Kansas. Like all phone companies at the time, they operated as a regulated monopoly—in exchange for exclusive rights to provide service in their area, they had to publish a free white pages directory listing every customer. It was a condition of doing business, not a creative endeavor.

Feist Publications saw an opportunity. They were in the business of creating regional phone directories—comprehensive books covering larger geographic areas by combining listings from multiple local providers. They had successfully licensed directory information from eleven other telephone companies in Kansas. But Rural refused to play along.

So Feist did what seemed obvious: they copied roughly four thousand entries directly from Rural's directory and included them in their own publication.

Rural had anticipated this possibility. Buried among the legitimate listings were a handful of fake entries—phantom subscribers who didn't exist. When these fabricated names appeared in Feist's directory, Rural had their smoking gun. They sued for copyright infringement.

The Sweat of Your Brow

For most of American legal history, Rural would have won easily. Courts had long followed something called the "sweat of the brow" doctrine, which held that anyone who invested significant time and effort into creating something deserved copyright protection for that work. The reasoning felt intuitive: Rural had done the hard work of collecting all those names and numbers. They had earned ownership of that information through their labor.

Both the trial court and the appeals court agreed with Rural. Feist had stolen the fruits of Rural's labor. Case closed.

Except the Supreme Court saw things very differently.

Justice O'Connor Rewrites the Rules

Justice Sandra Day O'Connor wrote the Court's opinion, and she started by identifying a fundamental tension in copyright law that had been lurking beneath the surface for decades.

On one hand, everyone agreed that raw facts cannot be copyrighted. You cannot own the fact that the earth orbits the sun, or that Abraham Lincoln was born in 1809, or that John Smith's phone number is 555-1234. Facts exist independently of whoever discovers or records them.

On the other hand, everyone also agreed that compilations of facts—collections, databases, directories—could be copyrighted. Otherwise, anyone who spent years researching and organizing information could see their work immediately copied by competitors.

But wait. If individual facts cannot be protected, how can a collection of those same unprotectable facts suddenly become protectable? As O'Connor put it: "Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place."

The answer, she explained, lies in understanding why copyright exists at all.

The Constitutional Foundation

The United States Constitution grants Congress the power to create copyright law, but it specifies the purpose: "to promote the Progress of Science and useful Arts." The framers weren't trying to reward hard work for its own sake. They were trying to encourage creative expression by giving creators temporary monopolies over their original works.

The key word is original.

O'Connor declared that "originality is the sine qua non of copyright"—Latin for "the essential condition." Without originality, there can be no copyright, regardless of how much effort went into creating the work. The sweat of the brow doctrine, which had guided courts for generations, was simply wrong.

This didn't mean the bar for creativity was particularly high. O'Connor emphasized that the required level of creativity was "extremely low." A work didn't need to be novel or innovative. It just needed to possess a "spark" or "minimal degree" of creativity. Almost anything would qualify.

Almost.

The Alphabetical Arrangement

When it came to compilations of facts, O'Connor explained that copyright could protect the creative choices involved in creating the compilation: which facts to include, which to exclude, how to arrange them, how to present them. The creativity lies in the selection and arrangement, not in the underlying information.

If someone copied the facts from a compilation but presented them in a completely different way, they would be in the clear. "A subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work," O'Connor wrote, "so long as the competing work does not feature the same selection and arrangement."

And what about Rural's phone book?

There was no creativity whatsoever. Rural had simply listed every single subscriber—no selection involved. They had arranged the names alphabetically—the most obvious, mechanical ordering possible. The whole thing was required by law. Rural had made no creative choices because there were no choices to make.

The phone book was facts, nothing more. And facts cannot be owned.

Rural's copyright claim was dismissed. Feist's copying, while perhaps ethically questionable, was perfectly legal.

The Cascade of Consequences

The implications of this ruling rippled outward in ways the phone companies of Kansas could never have anticipated.

Consider recipes. A recipe is fundamentally a process—a set of facts about how to combine ingredients. You cannot copyright the fact that cookies require flour, sugar, and butter mixed in certain proportions and baked at a certain temperature. But you can copyright the specific words you use to describe that process. This is known as the idea-expression divide: the idea belongs to everyone, but your particular expression of it belongs to you.

So if you wanted to republish every recipe from a famous cookbook, you could legally rewrite each one in your own words. The facts—the ingredients, the temperatures, the techniques—are fair game. Only the original author's specific prose is protected. And if you wanted protection for a truly innovative cooking technique, you'd need to look to patent law, not copyright.

The Battle for Legal Information

But the most dramatic consequences of Feist played out in an industry you might not expect: legal publishing.

American case law—the written decisions of courts—is theoretically public domain. These are government documents, produced by public officials, funded by taxpayers. Anyone should be able to read them.

In practice, however, one company had established something close to a monopoly on access to these public documents: Thomson West, publisher of the famous West reporters. For over a century, West had been publishing comprehensive collections of court decisions, and they had developed an elaborate system of citations and cross-references that lawyers relied upon.

West claimed copyright not just in their editorial additions—the summaries and headnotes they wrote—but in the page numbers themselves. If you wanted to cite a specific passage from a court decision, you had to use West's page numbers, because those were the standard that every lawyer and judge expected. And West argued that their pagination was copyrighted.

They also claimed copyright in the text of the decisions themselves, because West made minor corrections and added parallel citations to other sources. The argument was that these small enhancements transformed public domain documents into proprietary content.

If these claims held up, no one could create a competing legal database without licensing from West. The public domain would exist only in theory.

The West Empire Crumbles

In 1986, before Feist was decided, West had successfully sued Mead Data—the company that owned LexisNexis—to prevent them from including West page numbers in their database. West's citation copyright seemed secure.

But Feist changed everything.

In 1994, legal publisher Matthew Bender and a small CD-ROM company called HyperLaw challenged West's claims. The cases wound through the courts for years, with alliances shifting in remarkable ways. Reed Elsevier, a major publisher, acquired both Mead Data and eventually Matthew Bender, ending up on West's side even though the case bore Matthew Bender's name. West itself was acquired by the Canadian media giant Thomson Corporation.

In 1998, the Second Circuit Court of Appeals ruled that West's page numbers were not copyrightable. Arranging cases and assigning them to particular pages did not involve sufficient creativity to warrant protection. The court explicitly found that Feist had undermined the reasoning of the earlier decision protecting West's citations.

In a separate ruling, the same court rejected West's claims to copyright in the text of court decisions. The minor corrections and additions did not transform public domain material into proprietary content.

West appealed to the Supreme Court, which declined to hear the case. The fortress had fallen.

The Limits of Copyright as a Business Model

A later case, Assessment Technologies versus WireData in 2003, pushed the principle even further. A company had collected public records—property assessments and the like—and compiled them into a database. When a competitor tried to extract the underlying public information, the compiler sued.

The Seventh Circuit Court of Appeals ruled not only that the public domain data remained free for anyone to use, but that it was fair use to reverse engineer a copyrighted database to get at the uncopyrightable facts inside. Even more remarkably, the court held that trying to use copyright to lock up public domain information constituted "copyright misuse"—an abuse of the legal system.

The message was clear: you cannot use copyright as a business model for controlling facts, no matter how much work you put into collecting them.

The World Responds

Congress briefly considered passing new laws to protect databases, separate from copyright. These efforts failed. But the European Union took a different path, creating what lawyers call a "sui generis" right—a one-of-a-kind legal protection specifically designed for databases. In Europe, significant investment in collecting data can create legal rights even without creative selection or arrangement.

Other countries grappled with similar questions. Canada initially followed Feist's approach, but its Supreme Court later carved out an exception: you can claim protection for a database of facts you personally generated, even if the arrangement isn't creative. So a collection of your own recipes might be protected, but a collection of census data you copied from government records would not be.

Australia's courts initially went the opposite direction, embracing the sweat of the brow doctrine that American courts had rejected. But in 2010, Australian courts reversed course and adopted something closer to the American approach.

India found itself in a similar case involving CD-ROMs of Supreme Court decisions. The court cited both the American Feist decision and Canadian precedent, establishing that some creativity—not merely labor—was required for copyright protection.

What Can Be Owned?

The Feist decision established a principle that sounds simple but has profound implications: you cannot own facts. You can own your creative expression of facts. You can own your original selection and arrangement of facts. But the facts themselves remain free for everyone to use.

This means that any project serving as a collection of knowledge must carefully distinguish between what it created and what it merely collected. The information itself—the facts, the data, the discoveries—is fair game for anyone. What's protected is only the "expressive" content added by whoever compiled it: their commentary, their choice of which facts to include, the connections they drew between pieces of information, their particular organization (unless it's something obvious like alphabetical order), their evaluations and judgments.

For creators, this can feel frustrating. Someone can take years of painstaking research and immediately republish the facts, as long as they write their own descriptions and choose their own organization. The original researcher has no legal recourse.

But for society, this principle is essential. Scientific knowledge builds on previous discoveries. Journalism depends on the free flow of factual information. Competition requires that newcomers can access the same basic data as incumbents. If facts could be owned, the first person to discover something would control it forever.

The Little Phone Book That Changed Everything

Rural Telephone Service Company of Lenora, Kansas, probably never imagined their white pages would become a landmark of intellectual property law. They just wanted to stop a competitor from copying their work.

But in losing their case, they helped establish a principle that continues to shape our information economy: no matter how hard you work to collect facts, you cannot own the facts themselves. Only creativity gives rise to ownership. Everything else remains free.

For a ruling that came from such a mundane source—an alphabetical list of phone numbers in rural Kansas—Feist has had remarkably far-reaching effects. Every database, every directory, every collection of information exists in its shadow. And the question it forces us to ask remains as relevant as ever: what, exactly, did you create? And what did you merely find?