Reading of the decision

A satisfactory and comprehensive reading of the decision can be developed. The work accepts the judgment as in force, rather than querying its correctness as an interpretation of copyright, in contrast to other critiques. The Feist (Feist Publications, Inc. v. Rural Tel. Service Co., Inc. 1991) decision has been recognized as unresolved but generally regarded as a wrong turn by the Supreme Court, rather than critiqued and explicated. Crucially, the work accepts the judgment as law and explicates and elucidates it. The argument of the work is close to the advice issued by the Copyright Office (2017, 308.2), which quotes ‘so mechanical or routine’ and its associated clauses from Feist to characterize what is not copyrightable. It differs from, and builds on, that advice by, by developing a positive interpretation of creativity. The survival of the judgment over time is taken to imply that it is self-consistent and in accord with real world determining forces.

The creativity required for copyright is left undefined by Feist (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991) and has resisted subsequent elucidation. The opposite or antithesis to creativity is extensively characterized by the judgment and has the potential to clarify the decision. Specifically, the antithesis to creativity can be very strongly correlated with conceptions of computability and, specifically, with a routine automatic computational process. Accordingly, creativity is understood as non-computational human activity, above a certain level of routinicity. The non-computable itself is understood as direct human interaction with meaning. The reading comprehends all aspects of the decision, has strong analytic and future proofing possibilities, and reduces the dissonance of the decision with previous understandings of copyright.

New meanings, related to modern digital technologies, are imported from specialized discourses remote from the ordinary discourse and precedents available to the Supreme Court. Models of the computational process and characterizations of computability, have been developed in logic, mathematics, and theoretical computer science, but were in 1991, and still in 2020, not widely present in ordinary discourse, lagging behind the diffusion of computational processes and of the computer as a material technological product. They are also remote from the humanist tradition of the law and legal scholarship, although formal or symbolic logic might be one mediating intellectual influence. Reference has been made to the undeveloped nature of information concepts in law (Bygrave, 2015). The potentially unfamiliar, such as the theory of computability, is here explained in ordinary discourse terms.

The fully argued position established, that copyright should continue to reside in the products of intellectual labor, is largely in accord with independently developing practice. It also explicitly restores the incentive function of copyright, by recognizing and protecting the costs of human intellectual and creative activity. A continuity is revealed with the understanding of copyright as the natural right of an author to benefit from their intellectual labor, an understanding which has dominated since Jefferson and which was thought to be threatened by the requirement for creativity.

Comparisons are also made between the understanding of the absence of copyrightability and copyrightability established for Feist (1991) and standards in the European Union and in jurisdictions globally. The creativity required for Feist is mapped to the labor generally more directly required in other jurisdictions. A high degree of congruence is similarly found between the interpretation established of Feist (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991) and European Union and global standards, adding to the integrative effect of the work.

The reading of the decision given is original, compelling, concise, and practically implementable, absorbing and resolving disputes which have persisted since 1991. The correlation of the antithesis to creativity with a routine automatic computational process as the central component of the reading gives the economy and conviction desired.