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Publication Date

Spring 1992




Duke University School of Law




Lawyers more than most people should be aware that what language calls "facts" are not necessarily equivalent to things that exist in the world. After all, when in ordinary conversation someone says "it's a fact that X happened," the speaker usually means, "I believe the thing I describe has happened in the world." But when a litigator presents something as a "fact," she often means only that a good faith argument can be made on behalf of its existence. Two sets of factfinders can look at the same event and come to diametrically opposed conclusions-each of which is binding, but on different people. Most law students come to accept these disturbing phenomena as limitations inherent in an adversary system of justice. Yet lawyers have not yet accepted that all investigative efforts are similarly limited by observers' expertise, viewpoints, and tools. A Justice on the United States Supreme Court recently announced, pointing to the census as an example, that facts such as population density cannot be "created," and then used that assumption to deny copyright protection to inhabitant lists on the ground that facts are only "discovered" rather than "authored. ' This was, of course, the famous Feist case, in which the Supreme Court denied copyright to the white pages of a Kansas telephone book. Though I entirely concur with the denial of copyright, the opinion's reasoning is deeply flawed. The opinion reads as if the Supreme Court distinguished two sorts of facts-Facts, that are "out there in the world" and Facts that are human attempts to depict Facts, -and denied copyright in lists of Facts on the ground that Facts, and Facts were the same. We academics may or may not applaud the denial of copyright, but most of us unite in seeing the Court's insistence that facts are never "created" as a conceptual error. Ironically, the embarrassingly high level of approximation in the United States census itself should have reminded the judges that any "fact" on the books is in some sense created by people; though the census-taker has not created that which a number seeks to measure, the number he writes on the page has its origin with him. True, other observers might arrive at the same number, and this consideration is relevant to the policy question of whether the first counter should receive copyright in his number-but this does not make the number on the printed page an uncreated artifact. Ironically, the plaintiff phone company in Feist may even have generated the very phone numbers at issue.'

Assume for the moment that the Supreme Court had admitted in Feist that facts and created works are not mutually exclusive categories-that Facts can be "created." Then the Court would have had to deny copyright in lists of Facts on the basis of straightforward interpretation of congressional policy and statutory language. The policy dimension of any such argument should focus on the effects of granting ownership in Facts, rather than on the way Facts come into existence.

Most notably, copyright's long term and comparatively easy-to-obtain grants of protection are based on the premise that nothing of very high value-no idea or fact-is being appropriated by private parties. Facts may be creative, as ideas may be, but Congress has determined that giving private ownership in them is simply more costly than society can afford, or in any event more costly than the copyright balance contemplates. Further, even independent of the language of the copyright statute, the public may have justifiable claims to copy facts that it does not have regarding other created works.

The presentation of such arguments would have been a significant step forward, for such an approach would have forced the Court to articulate the policy weighings that can affect how the law will treat the range of created works that function as fact. By instead assuming that created facts simply do not exist, the Court has hobbled judges in their dealings with the many contexts in which the hybrid nature of created facts causes conceptual and practical difficulties.

This article is concerned with works that do not primarily attempt to reflect the world; they are not Facts seeking to describe Facts,. Rather, they are the largely imaginative works-songs, speeches, cartoons, architectural designs, sculptures, stories, letters-in which the depiction of Facts, plays a minor and untroubling role. These works are problematic when they themselves become facts with which their audiences have to deal.

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