Dictated by state law

The treatment of selection is then further developed, directly in connection with not meeting the originality requirement:

Figure 4.4 Logical representation of could not be more obvious ... the most basic information

We note in passing that the selection featured in Rural’s white pages may also fail the originality requirement for another reason. Feist points out that Rural did not truly ‘select’ to publish the names and telephone numbers of its subscribers; rather, it was required to do so by the Kansas Corporation Commission as part of its monopoly franchise. ... Accordingly, one could plausibly conclude that this selection was dictated by state law, not by Rural.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 363)^[1]

The reference of the passage is directly to the ‘originality requirement’ (p. 363) rather than to a level of creativity. The qualification, ‘note in passing’ (p. 363) also implies a departure from the direct concern with levels of creativity and ‘for another reason’ (p. 363) a concern with another constituent of originality. The only other constituent of the not original is the absence of independent creation, and this must be understood as indicated, rather indirectly. The determination of the process of selection by an outside body precludes the presence of independent creation, also indicated by the ‘to’ in ‘not original to’ (p. 363), in the conclusion of the ratio decidendi.

The paragraph in which the absence of independent creation is invoked is separated from the preceding paragraph dealing with insufficient creativity: ‘We note in passing ... for another reason’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 363). However, it is more continuous with the subsequent paragraph. The subsequent paragraph opens, ‘Nor can Rural claim originality in its coordination and arrangement’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 362), with the opening ‘[n]or’ implying some difference but also a continuity. A difference is revealed in the concern with collection and arrangement rather than selection and in the presence of independent creation - ‘no one disputes that Rural undertook the task of alphabetizing the names itself (p. 363). The subsequent paragraph is concerned with ‘nothing remotely creative’ (p. 363). Continuity must then reside in the concern with ‘nothing remotely creative’ (p. 363). The final summative clause of the current paragraph, ‘dictated by state law’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 363) can then be understood as characterizing ‘nothing remotely creative’ (p. 363) as well as the possible absence of independent creation.

The particular sense of ‘dictated’ can be inferred from its context and its occurrence elsewhere in the decision. ‘[Dictated’ is used elsewhere in the decision, again in connection with law, ‘the statute dictates’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 358). ‘[Dictated’ can then be understood as an intense form of specification, with intensity semantically contained within the primary term, dictated, rather than added by a qualifier, in contrast to the previous formulations. ‘[S]tate law’ refers to law, state rather than federal, imposed on the process of selection, from outside that process. Law (p. 363) refers to a law or verystrong rule imposed on a process from outside that process. ‘Dictated ... by law’ (p. 363) can then be understood as an intense form of specification, with intensity semantically contained within the primary term, dictated, rather than added by a qualifier. Both ‘dictated’ and ‘state law’ can then be understood in central ordinary discourse senses. Contained within a single clause, the relation between ‘dictated’ and ‘state law’ can be read as a conjunction (see Figure 4.5).

‘[Dictated’ (p. 363) as a verb invokes a process rather than the product of selection, indicated by the verb form select in ‘did not truly “select”’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 363). The reference of the passage is clearly and strongly to the process rather than directly to the product of selection.

The relation of the clause, ‘dictated by state law’, to the ‘so mechanical or routine’ can be considered. The intensity of ‘dictated’ confirms the intensity conveyed by the ‘so mechanical’, whereas state law would exemplify the routine as commonplace, ordinary, or usual. ‘[S]tate’ in ‘state law’ (p. 363) can be understood as an exemplification of the routine and as qualifying primarily the process and secondarily the product of selection. Rather than being associated primarily separately with either the ‘so mechanical’ or the ‘routine’, the clause as a whole can be understood as exemplifying, although not fully or exclusively occupying, the conjunction of the ‘so mechanical’ with the ‘routine’ within the umbra of the absence of creativity. Hence, the reading of ‘so mechanical or routine’ as a conjunction is supported. The ‘so mechanical or routine’ and the absence of creativity can now be further understood to include, as a centrally characteristic referent, the carrying out of a process in strict conformity with a well-known law externally derived and imposed.

The meaning of ‘dictated by state law’ is then consistent with the interpretation developed of the extreme absence of creativity, as so mechanical OR so ... routine with the expectation that the conjunction, or AND, will be substantially and significantly occupied. Applying to the process of selection for Rural’s white pages as an exemplar, it also illustrates the most inclusive logical reading (a so mechanical AND so ... routine process AND a highly routine product) identified as the strongest form of the extreme absence of creativity.

Figure 4.5 Logical representation of dictated by state law

In summary, then, the content bearing terms in ‘dictated by state law’ can be understood in their central ordinary discourse senses. ‘[Dictated’ and ‘state law’ are in conjunction with each other. The clause can be understood as referring to one instance of the conjunction of the ‘so mechanical’ with the ‘routine’.

• [1] Feist had contended that, ‘The listings do not evidence any selectivity. The white pages listings take the entire universe of data, and indeed, RTSC is required to publish all the data as part of its telephone service franchise’ (Feist, 1990, p. 22).