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44 INTELLECTUAL PROPERTY & THE CONSTITUTION
Questions:
1.) The Court says “[i]f we should endeavor to classify it under the head of writings of
authors, the objections are equally strong. In this, as in regard to inventions, originality
is required.” Where does this limitation appear in the Intellectual Property Clause? Is
there a textual basis? A philosophical basis? Both?
2.) “In such cases it is manifestly the dictate of wisdom and judicial propriety to decide
no more than is necessary to the case in hand. That such has been the uniform course of
this court in regard to statutes passed by Congress will readily appear to any one who
will consider the vast amount of argument presented to us assailing them as
unconstitutional, and he will count, as he may do on his fingers, the instances in which
this court has declared an act of Congress void for want of constitutional power.” Yet this
time the Court does declare the Act unconstitutional, despite the fact that the word
original does not appear in the Intellectual Property Clause. Why? Does the discussion
of the Commerce Clause, and its assumptions about Federal power, suggest an answer?
Or is the originality requirement, in your view, well grounded in the purpose and
language of the Intellectual Property Clause?
Feist v. Rural Telephone Service
499 U.S. 340 (1991)
The Feist opinion can be found in Chapter 11, starting at page 301. Please read it and
then answer the following questions.
Questions:
1.) What would Justice Pitney, who wrote the majority in INS v AP, say about this case?
2.) Is this merely a case about statutory interpretation? Or does it reinforce the Trade-
Mark Cases’ originality requirement?
3.) From an information economics point of view, telephone directories look like “public
goods.” They are non-excludable and non-rival. Yet this decision refuses to extend
copyright to them. Is there an economic justification for such a result as well as a
constitutional one?
4.) Think of innovation and culture as an input-output system. There are inputs (the raw
material from which the innovation or the cultural product is produced) and outputs (the
book, the invention, the movie, the software program.) Intellectual property schemes
give control and limited monopolies over outputs, but this also risks raising the cost of
the inputs for the next generation of innovation or culture. What “balance” does the Feist
case set in terms of the inputs and outputs of copyright? Why leave unoriginal
compilations of fact free?
5.) It is the day after the Feist decision and you are the lawyer for the winners. Might
you still try and negotiate a license with the telephone company for their directory
information, even if at a lower price? Why, when you could take it for free? Does this
tell you anything about how excludable and non-rival the telephone directory truly is?