Feist and the digital age

The decision has been widely regarded as the most significant of modern intellectual property cases for the digital or information age, for the current epoch.

Just as the Supreme Court’s 1879 decision in Baker r. Selden, describing the respective spheres of copyright and patent law, was a defining event for copyright in the industrial age, so Feist is a defining event for copyright in the information age.

(Goldstein, 1991, p. 118)

The view of Feist as ‘a defining event for copyright ... in the information age’ (Goldstein, 1991, p. 118), then, intimates a significant relation of the case to contemporaneous information developments, but does not folly explore the nature of that relation. The comment cites Baker v. Selden for its significance to the distinction of copyright from patent but does not attend to the late-nine-teenth-century information technologies - books for entering accounts and economizing on the direct human labor involved - in the case. A limited historical awareness with regard to information technology is, then, discernible. The subsequent critical understanding of the judgment then shows a strong consensus that it is the crucial judgment for copyright in the digital age. The precise significance of the judgment for the digital age remains unarticulated, although there has been some further specificity.

In particular, developments in information technology, including computational technologies, were early recognized as a highly relevant context (Samuelson, 1992). Recognizing the presence, and also the influence, of technology is valuable for locating the judgment in real historical practice, particularly with regard to changes in the methods of production and distribution of data. The time and geopolitical place of the Feist decision does offer further clues which enable us to sharpen our focus in the search for a specific relation to the digital age. The case itself emerges in the 1980s, in connection with a transition to more intensively computer-based methods of directory production. The congruence in time and geopolitical space - 1991 and the United States - between the judgment and the diffusion of the internet as the World Wide Web is striking. The specific relation can then be sought in the diffusion of the computer and of the signal transmission technologies of the internet. The decision emerged earlier in the United States than similar movements in other jurisdictions, supporting its relation to the digital age as residing in the in the global diffusion of technologies, a movement proceeding slightly earlier in the United States than in other jurisdictions. A relevant context for explanation can, then, be found in the concurrent diffusion of information and communication technologies.

A technologically deterministic explanation which arises in connection with the recognition of an influence from technology - that, by 1991, technological developments had made public policy control over the movement of data impossible to exert -is initially attractive. It can be considered from a technologically and historically informed perspective. The implications for copyright of the increased ease of duplication or copying of material conferred by modern computational technologies were discussed (Resnik, 2003, p. 304n). For instance, by 1993, the economic significance of electronic databases was recognized, while noting that, ‘personal computers are widely available and their use to “move” information cannot feasibly be regulated by legislative means or contractually controlled by producers or other private interests’, and concluding that, ‘[technological barriers to the piracy of these valuable resources ... remain practically nonexistent’ (Narayan, 1993-1994, pp. 459, 481). Similarly, in 2003, it was noted that the ease of copying, transformation, and transmission of digital information made it very convenient to use but also difficult to control (Resnik, 2003, p. 304). The influence from technology has emerged fully as a central theme and often in connection with a critique of the judgment as abandoning public policy control over an increasingly economically significant activity. Technically, however, constraints on copying have been developed and proved effective. In subsequent history, the contractual measures taken by database producers have also proved generally sufficient to protect their interests. A technologically deterministic account of the decision’s relation to the digital age, then, emerges as insufficient technically and historically.

The consensus, then, of commentaries is that Feist is somehow intimately related to the current epoch, to the digital age. However, this consensus does not extend to specifying the precise or particular relation that exists. On the basis of the consensus of commentaries, we can accept a deep relation to the digital age and adopt as our task, the exposure of that specific, and still deep, relation.

Conclusion

In conclusion, then, a reading of the decision must substantiate creativity, acknowledge its significance, explain its diffusion, accept its status as law, fully contextualize its circumstances, and specify its relation to the digital age. Economy and conviction in explanation would be achieved if the central component of the reading fulfilled all these functions.