Diffusion

The diffusion of the decision includes its extension to comprehend material not prepared as data for compilations. For instance, a decision, concerned with the use of players’ statistics by newspapers for fantasy baseball, took Feist as controlling for considerations of copyright preemption. Baseball players’ names and playing records were considered to be analogous to the ‘names, towns, and telephone numbers in a phone book’ (C.B.C. Distribution, 2006, p. 73). Crucially, the decision, in a direct citation to Feist, held that statistics of players’ performance lacked the ‘sine qua non of copyright - originality’, and refused to allow intellectual property to inhere such data (pp. 70, 73).

Other jurisdictions have also encountered similar issues and may have been indirectly influenced by the Feist judgment. The European Community Database Directive (Narayan, 1993-1994, pp. 469-472), sui generis in the sense that it is not directly part of copyright legislation, was introduced (Gupta, 2017). Such developments can also be understood as part of the process of technological diffusion. At the same time, the reaction in the sphere of legal consciousness is different and indicates possibilities for difference within a dynamic with extensive commonalities. A commonality in outcome has been observed.

Congress’ record in meeting the challenge of the new dissemination technologies invites comparison with the high protectionist model of the continental author’s rights traditions.... the practical results on both continents have been roughly the same.

(Goldstein, 1991, p. 115)

In this instance, protection for compilations can be integrated within copyright or as sui generis provision, on the European Union model. The standard for the lack of copyrightability in the decision has begun to diffuse globally (Gervais, 2002; Judge and Gervais, 2010).

The increasing number of citations to the case, and its global impact, imply that its significance has increased, rather than diminished, over time. In the period from 1991 to 2020, paralleling the diffusion of the judgment, the internet has grown, databases have expanded greatly in size and number, and search engines have become increasingly prominent. The definitive removal of restrictions on the development of large collections of data by the decision may have partly enabled this development. The global diffusion of the judgment further implies an international need for an authoritative reading of the decision.

Status as law

The decision remains law - ‘Like it or not, Feist is the law in the U.S.’ (Resnik, 2003, p. 309) - without the prospect of change. The Court itself has not revisited the decision, despite opportunities to do so. The most that can be read from the absence of revisiting is that the Court is not sufficiently dissatisfied with the decision or with its effects, to expend its time in reviewing it. Constitutionally, Congress, as the legislature, cannot immediately override the Supreme Court (Fallon, 2004; Nimmer and Nimmer, 1978/ 2020, §1.01 [B] [2] [a]). Although there have been a number of proposals for sui generis legislation to protect property for data in databases, these have not been passed into law. Sui generis proposals for legislation have not insignificant deliberation costs and, if enacted, can reduce the consistency and increase the complexity of the law (Trosow, 2004-2005). The status of the decision as current law, and the recognition of the costs of change, must then be accepted, as the founding basis for our considerations.