William H. Rehnquist: We'll hear argument next in No. 89-1909, Feist Publications, Inc., v. Rural Telephone Service Company, Inc.-- Mr. Knobbe?
Kyler Knobbe: Knobbe, Your Honor.
William H. Rehnquist: Knobbe, excuse me.
Kyler Knobbe: Thank you, Mr. Chief Justice, and may it please the Court: This case involves the copyrightability of a phone subscriber's name, address, and telephone number as published by the phone company in its directory. The effect of the decisions below, which came from the district of Kansas in the Tenth Circuit, is to hold that a private company cannot publish these facts in its own directory without first doing a canvas to obtain the facts from the phone subscriber. Our position is that while the telephone company's directory may be copyrightable as a whole, the phone company's alphabetical list of names, address, and telephone numbers of its subscribers is not a work of authorship under the statute, Section 101 of the copyright act. And that even if the alphabetical list of subscribers was somehow copyrightable as a whole, that copyright doesn't extend any protection to the preexisting facts in the list... the name, address, and telephone number. To briefly explain the facts, the easiest way to understand them is, if you look at the joint appendix, about five pages from the back, on page 93, there's a colored map.
Harry A. Blackmun: 0 [inaudible].
Kyler Knobbe: Page 93 of the joint appendix, Your Honor. That's a map of the northwest corner of the State of Kansas. There are 15 counties, 16,000 square miles in northwest Kansas. What each of the colors on the map represent is a different telephone directory. Where Feist started out... the petitioner in this case... Feist started out in southwest Kansas which is just to the south of here. Basically the scenario was the same. There was a patchwork. Each of these colors was a different phone directory. And if you were in Spearville, Kansas--
Harry A. Blackmun: Which one is yours again? I'm sorry. Which color is your company?
Kyler Knobbe: --Our... Feist Publications publishes an area-wide directory for all of those colors. What we do is put all of the colors together. The problem was when Feist started out. This is rural... I mean, rural not in the sense of rural telephone... but rural in the sense of non-urban.
Harry A. Blackmun: You didn't get my question. Which one is rural?
Kyler Knobbe: Yellow.
Harry A. Blackmun: The yellow.
Kyler Knobbe: The yellow is Rural Telephone service area. Okay. If you were in Spearville, Kansas, where Feist started out and you wanted to call your county seat, Dodd City, Kansas, to check on your property taxes, you couldn't find the number in your directory because your directory only had the listings for your exchanges that were serviced by your phone company. Dodd City was serviced by a different company. So you had to dial the information operator. What Feist's idea was to put... was to put all of these colors together into one area-wide directory, so if you were a phone subscriber, you could have access to all those listings for that area. If you wanted to call your county seat, if you wanted to call an implement dealer two towns over--
Harry A. Blackmun: Well, good idea.
Kyler Knobbe: --Thank you, Your Honor. [Laughter] To do that... what Feist did was went to the various phone companies here and licensed their updated white page listings so he could print those in the directory. Now, one thing that's important to note is he didn't necessarily just license the directory. He licensed updated, white page listings, the information that's available to the directory operator. The reason for that is, for example, if you look on the map, the directory that covers the green area in the lower left-hand corner, that directory may have came in February. The directory that covers the red area up in the top may have came out in November. Now a Feist directory that covers the whole area comes out in December, then the listings from the red area that came out in November, those will be fairly current. But the listings from this green area down here, if your looking solely at the directory, are almost a year out of date.
Sandra Day O'Connor: Counsel, did Feist leave in its directory the listings broken down by the areas you're showing or did it recompile the list into one giant alphabetical list?
Kyler Knobbe: It's in one giant alphabetical list, Your Honor. The two directories are part--
Sandra Day O'Connor: It's not broken down by the smaller areas?
Kyler Knobbe: --Not broken down by town. If you wanted to call Joe Blow and you knew he lived in Jennings, Kansas--
Speaker: Uh-huh.
Kyler Knobbe: --in Feist's directory you still looked under the B's till you got to Blow. Now, if you wanted to call Joe Blow and you were sure of where he lived. He may have lived in Jennings or Decatur... you weren't sure... it's up in there somewhere... you could still go alphabetically to look for Blow. All of these companies licensed their listings to Feist except for the yellow area. That's Rural Telephone.
Anthony M. Kennedy: Did Feist's directory show the name of the city or the name of the town?
Kyler Knobbe: Yes, Feist's directory shows the... maybe I misunderstand the question.
Anthony M. Kennedy: Well, if you wanted to look up this person and you looked him up, could you see not only his phone number--
Kyler Knobbe: Yes.
Anthony M. Kennedy: --and his street address, but then there would be a little--
Kyler Knobbe: His--
Anthony M. Kennedy: --designation like OB for Oberlon or something?
Kyler Knobbe: --Well, it was his name, address, and telephone number, and in this--
Anthony M. Kennedy: But would the address show the town?
Kyler Knobbe: --Yes, it would show the town, Your Honor.
Anthony M. Kennedy: And so that had to be added, I take it, to the listing that was in the phone directory, because the phone directory would not have the name of the town after each little--
Kyler Knobbe: No, Your Honor, that's--
Anthony M. Kennedy: --after each address.
Kyler Knobbe: --I wish it were so, but that's incorrect.
Anthony M. Kennedy: All right.
Kyler Knobbe: The phone... the phone company's directory does show the name, address, and telephone number and part of the address is the town.
Anthony M. Kennedy: In each listing or is the town just at the top of the page?
Kyler Knobbe: No. The... what Rural's directory is... Rural Telephone's directory is also just a straight alphabetical list of every subscriber in the yellow area. There are some differences--
Anthony M. Kennedy: Well, let me ask the question this way. What are the... are there any differences between each individual listing in the Feist directory and in the phone book directory?
Kyler Knobbe: --Yes, there are approximately 3,800... there are 4,935 listings that are potentially duplicates. And there are 3,800 of them are different. Some of the differences are in address to the extent of this. Joe Plow, Jennings, Kansas... excuse me... Joe Blow, Jennings is what appears in the Rural directory. Now in the Feist directory it may be Joe Blow, Route 2, Box 47, Jennings. The town is named in the--
Anthony M. Kennedy: All right.
Kyler Knobbe: --directory throughout. This is not Washington, D.C. This--
Sandra Day O'Connor: Well, do you take the position that Rural's white pages contain no protectable expression at all and somebody like Feist could just xerox it and sell it as its own?
Kyler Knobbe: --That's the position we take. It doesn't comply with the statute under Section 101. We have a--
Sandra Day O'Connor: That isn't what was done here, but you take the position--
Kyler Knobbe: --No, it is not what was done here.
Sandra Day O'Connor: --it could have been done.
Kyler Knobbe: That's correct. But that's our position if you look at the... if you look at the statute.
Anthony M. Kennedy: And somebody could do-- --You say it's not a compilation at all?
Kyler Knobbe: No, they're all preexisting facts.
Byron R. White: Oh.
Kyler Knobbe: It's simply an alphabetical list of their subscribers. It doesn't comply... the statute is Section 101--
Byron R. White: Yes.
Kyler Knobbe: --which defines a compilation.
Byron R. White: And this is not it? This is not a compilation?
Kyler Knobbe: This is a compilation in the normal accepted term, but it's not a compilation as defined in the statute.
Byron R. White: Okay.
Kyler Knobbe: It's not a copyrightable compilation.
Antonin Scalia: So I assume that somebody could just come in and xerox your directory and sell it, right?
Kyler Knobbe: If--
Antonin Scalia: You're in a pretty precarious business there. [Laughter]
Kyler Knobbe: --I think so. If you're looking for a handle, you know, maybe that's the handle. Maybe the handle is xerox piracy or something of the pages. But you can't protect the name, address, and telephone number in a simple alphabetical list.
Sandra Day O'Connor: Well, now, what's the statutory language that you rely on, please?
Kyler Knobbe: The statutory language is in Section 101 of the copyright act. That defines a compilation as a work formed by the collection and assembly of preexisting materials or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.
Sandra Day O'Connor: And you say that an alphabetical listing of phone numbers cannot be an original work of authorship?
Kyler Knobbe: It doesn't... it does... yes, I say that. It doesn't exhibit any coordination or arrangement. An alphabetical arrangement can't be a copyrightable thing. That's simply the most efficient way to arrange something. Wouldn't we have some severe problems with dictionary people and everyone else if you could copyright the alphabet?
Sandra Day O'Connor: What about computer databases generally? Same thing.
Kyler Knobbe: Well... same thing, but computer databases I think are really... I don't know if they're published or not. I mean there's a lot of stuff in the amicus here about, oh, we're going to affect this... you know the sky will fall and nothing will be copyrightable. Most computer databases are handled by license agreements. They're protected by contract. I contract my computer database to you and as part of that your contract says you're not going to further disseminate it or whatever. Here we've got a published... we've got a published directory.
Antonin Scalia: Well, I mean, there is certainly some selection. If you're adverting to the words of the statute, there certainly has been some selection here, hasn't there, of names? Their directory selected only the names of people in the yellow areas.
Kyler Knobbe: That's their entire list of subscribership.
Antonin Scalia: Well, it may well be, but that's a selection. They didn't publish anybody else's subscribership. That's a selectionship, isn't it?
Kyler Knobbe: We don't think... publishing your entire list doesn't seem to be a selection to us.
Antonin Scalia: Well, sure, I've just chosen to publish my entire list and not somebody else's list. Why isn't that selection?
Kyler Knobbe: Well--
Antonin Scalia: I could have done what you did. They, they could have decided to put out a directory for the whole thing. They didn't. They said, we're going to be more selective. We're only going to publish a list of the people in our [inaudible]. Now you may think that's not a very... what should I say... inventive selection, but it is a selection, is it not?
Kyler Knobbe: --If it's a selection, it's not a copyrightable selection. That's our position.
Antonin Scalia: Well, okay, so what it comes to, it has to be the kind of a selection that causes... that causes the whole thing to be a work of authorship.
Kyler Knobbe: A work of authorship, yes.
Antonin Scalia: Where do we look for that... for what kind of a selection causes something to be a work worth of authorship?
Kyler Knobbe: Isn't there some type of... our position is there's some type of objective or subjective that you select... maybe we can--
Antonin Scalia: Creativity? Is that what has to go into it?
Kyler Knobbe: --And I... we can't say creativity--
Antonin Scalia: No?
Kyler Knobbe: --because if you get into creativity what you get into... that's what the new act gets away from.
Antonin Scalia: Uh-huh.
Kyler Knobbe: Selection... if you can select the whole... the whole range of data, and that's copyrightable, okay? Actually, as one answer, we didn't take their selection.
Antonin Scalia: Yes, but when you say selection--
Kyler Knobbe: We did the whole area, not just theirs.
Antonin Scalia: --When you say select the whole range of data, you're begging the question. I mean, deciding what the range is is itself a selection. You can decide to publish all the restaurants in town or you can decide to publish just the 100 best restaurants. But either one is a selection. You could have chosen instead of all the best restaurants in town, all... or instead of all the restaurants in town, all the restaurants in the county, or all the restaurants in the State. No, I'm going to be more selective. People aren't interested in all the restaurants in the State, just all the restaurants in the city. That's a selection. Now, why is that selection in your view not copyrightable. But if I say, because I know what your view is... if I say just the best restaurants in town, that is. Now why... what's the difference between those two?
Kyler Knobbe: In our view, that has made some selection, other than just publish everything.
Antonin Scalia: But I just said--
Kyler Knobbe: If I publish--
Antonin Scalia: --It doesn't publish everything. I'm just publishing the restaurants in this city. I've made the judgment that--
Kyler Knobbe: --All are published are facts.
Antonin Scalia: --a list of all the restaurants in the State would be useless to people. But I know a lot of people that would want to know all the restaurants in the State capital. So I'm being selective to that extent. That's a selection.
Kyler Knobbe: What I've published then is I've selected just to publish all the facts, and all the facts that I've published cannot be--
Antonin Scalia: Not all the facts.
Kyler Knobbe: --are not protected.
Antonin Scalia: Just the restaurants in the State capital. I've excluded restaurants elsewhere. That's a selection, isn't it? You will not concede that that's a selection?
Kyler Knobbe: I will concede that's a selection. I won't concede that that's a copyrightable selection, because what have I done other than just publish a list of the facts?
David H. Souter: Well, if that's true, the Encyclopedia Britannica just publishes facts. Can you copy that?
Kyler Knobbe: Their coordination, arrangement, selection, if they exhibit sufficient coordination, arrangement, and selection, sure that's copyrightable.
David H. Souter: Well, why haven't you got it here? A variant on Justice Scalia's question is even within the service or the phone company, all the phone company publishes are the names and addresses and numbers of people who subscribe to phone service. They don't publish the listing of everyone who lives in that town. That's a selection. That's not publishing all the facts about the people in that town. It's publishing facts only about people who subscribe to phone service.
Kyler Knobbe: Yes, Your Honor. Our position is if you publish them all, that's not.
Sandra Day O'Connor: Does-- --Isn't your position, Mr. Knobbe, isn't your position that one should identify the author making the selection and who made the selection here? Did the phone company make it or did the public utility which required them to list everyone make the selection?
Kyler Knobbe: Well, the public utility obviously made it because you're required to--
Speaker: So the public utility really is the author of this particular compilation?
Kyler Knobbe: --I don't think that's necessarily correct.
John Paul Stevens: It seems it would help you if it were. [Laughter]
Kyler Knobbe: I could probably use the help.
John Paul Stevens: Because if they are the selector, then the publisher of the directory has not contributed a bit of authorship to the compilation. It's quite different from the Encyclopedia Britannica or something else where the author decides what to go in. Here the utility... the regulatory agency decided what would be selected.
Kyler Knobbe: If I publish... you know, here's a seating chart of the Supreme Court. If I come in here and make this out and I select only to publish the senior-most five justices... I mean, if I select to publish here's the seating chart, haven't I just published everything? I published all the facts. So I don't quite understand what work of authorship I've done. It's appears to me that the selection, coordination, and arrangement has to be like the baseball card case where the author selected the 5,000 premium cards out of there, the X case out of the Second Circuit.
David H. Souter: Isn't the difference that you can find out who the members of the Court are without having to consult that card. The fact it's available elsewhere? Whereas if we were a secret Court and the only way you could find our who we were would be by looking at a chart published by some third party, that chart would be copyrightable insofar as it was a compilation of the names, wouldn't it?
Kyler Knobbe: Yes, that it's a public fact? I mean... yes.
David H. Souter: Okay, well, in this case, you're not publishing facts which are generally available to you through sources that you use. You're simply publishing the compilation itself or a portion of the compilation as distinguished from the situation you would be in if you went out on the streets and stopped at every house and said, do you have a phone? If so, what is your number? You'd have to do that in order to get into the situation that you're in when you use the analogy of the Supreme Court seating chart.
Kyler Knobbe: Well, if the answer is that a name, address, and telephone number are not a fact, that they're somehow a copyrightable authorship, that may be correct. But a name, address, and telephone number--
David H. Souter: I don't think... I don't think anyone claims that to be the case.
Kyler Knobbe: --A name, address, and telephone number is a preexisting fact that under Section 103(b) that we've got the right to publish it. If you take the opinions of this Court--
David H. Souter: Sure, you're got the right to publish it. The question is have you got the right to public... have you got the right to publish it by copying their directory when that's the only way you get it? You don't otherwise go out and find the fact yourself. That's what raises the copyright problem, isn't it?
Kyler Knobbe: --Well, the copyright... we think it's a preexisting fact and our position would be then, the name, address, and telephone number are like the decisions of this Court. Okay, those are public domain information.
Sandra Day O'Connor: Well, what does the... does the statute require more than just selection? What are the Register of Copyright's guidelines on this? Can a simply alphabetical listing of all the data in a given area meet the Register's guidelines for what meets Section 101?
Kyler Knobbe: No, as I understand it--
Sandra Day O'Connor: What do we have to look at here?
Kyler Knobbe: --As I understand it--
Sandra Day O'Connor: And does it have to result ultimately in an original work of authorship?
Kyler Knobbe: --Yes, Your Honor.
Sandra Day O'Connor: I mean, maybe it's not enough to focus on the word "selection". Maybe the statute requires a series of things.
Kyler Knobbe: There are three portions to the statute. Collecting and assembling, which is the sweat-of-the-brow theory that's adopted below, and that is if you put a lot of stuff together, you're an author of it. The second portion is selection, coordination, and arrangement. And the third is so that the work as a whole is a work of authorship.
Sandra Day O'Connor: An original work of authorship?
Kyler Knobbe: Yes, an original work of authorship under the statute, under 101.
Sandra Day O'Connor: And how does the Register of Contract... of Copyright [inaudible] this statute?
Kyler Knobbe: The register interprets the statute... as I understand it, there's an article by William Patry, who's a policy planning advisor with the copyright office, and in that... in that article it talks about what the copyright office does. As I understand it... this is not part of the record... but they, for example, rejected the copyright on an alphabetical list of contributors of $2,500 or more to the Republican Party. It's--
Anthony M. Kennedy: What about the... what about telephone yellow pages?
Kyler Knobbe: --Telephone yellow pages--
Anthony M. Kennedy: How about telephone books?
Kyler Knobbe: --Telephone books they copyright and there's an interesting footnote in that article which I didn't realize is the reason they copyright them is typically telephone books are a combination of material. For example, in here there are yellow-page advertising in the telephone company's book that has art work and layout in it and that's--
Anthony M. Kennedy: Well, a lot of telephone directories--
Kyler Knobbe: --The white--
Anthony M. Kennedy: --are not subject from them. They're just white pages.
Kyler Knobbe: --Yes, these... the white page only ones... that's footnote 98 of his article. As I understand it what they do is the reason they register them is because of the sweat-of-the-brow theory, because of the split in the circuits between sweat of the brow--
Anthony M. Kennedy: You think they're wrong about... in granting copyrights on that or in registering them?
Kyler Knobbe: --Well, no until... unless the Supreme Court tells them what they're suppose to do. I assume that... you know, if you came out of a sweat-of-the-brow circuit like the Seventh Circuit and published a white page only directory, the copyright office would have to... I assume would have to register it.
Byron R. White: But you don't think... but you don't think that's a valid copyright?
Kyler Knobbe: Not, not on that portion of the directory... not on white pages only.
Byron R. White: Okay.
Kyler Knobbe: Now, if there are other--
Sandra Day O'Connor: But the yellow pages are copyrightable?
Kyler Knobbe: --The yellow pages have got original art work. They've got ad layouts in them. They've got works of... works of authorship, and those are copyrightable. There are some... in this directory of the phone company's, there's forward text in here. This has how to... you know, how to dial the phone company, how to make a long distance call, a party line. I assume Rural authored that and that's copyrightable. But that's really not what's involved. What's involved in this case is this little piece right here, the alphabetical list of white pages. Yeah, it's a public domain fact. The other statute is 103(b). 103(b) says that the copyright in a compilation, okay, extends only to the material contributed by the author as distinguished from preexisting material employed in the work and does not imply any exclusive right to that. For example, the decision of this Court are public domain information. As a... they're preexisting material. If, as a compiler, I put together all the decisions of this Court dealing with copyright law, then I've got a copyright in that as a whole, but I don't have a copyright in the decision of the Court.
William H. Rehnquist: Mr. Knobbe, do you think the 1976 act changed the copyrightability of a directory such as is involved here?
Kyler Knobbe: Yes, Your Honor, the '76 act included a definition of compilation in Section 101 and included a preexisting fact provision in Section 103(b).
William H. Rehnquist: Do you think the kind of directory we have here would have been copyrighted... copyrightable under the law as it existed before 1976?
Kyler Knobbe: Yes, Your Honor. I didn't research that, but I assume it--
William H. Rehnquist: So then you say that you must depend then on the changes wrought in the law in the 1976--
Kyler Knobbe: --Not necessarily the changes. Maybe the changes were only a clarification, but I'm dependent upon the statute, the words of the statute.
William H. Rehnquist: --But you said a moment ago you thought it would be copyrightable under the preexisting law but it's not copyrightable under this law. Then you must depend on the changes effected in the 1976 act, must you not?
Kyler Knobbe: Yes. I think we're... I think my confusion is the same as the courts below, that is, this directory is copyrightable as a whole. We're not... we're not contesting the validity of that. What we're saying is these facts in this directory, this white page list of name, address, and telephone number, is available to subsequent compilers. The copyright law--
William H. Rehnquist: So--
Kyler Knobbe: --as I understand it is like... it's a balancing test between the public's right to information, public access, and profit to an author.
William H. Rehnquist: --Well, then do you say that the Rural directory here was copyrightable?
Kyler Knobbe: Yes, Your Honor. I think the directory is copyrightable as a whole even under the '76 act, because there is copyrightable provisions in here. There are copyrightable yellow pages.
Sandra Day O'Connor: Well, because there are yellow pages in it?
Kyler Knobbe: No, because--
Kyler Knobbe: Otherwise you take the position that--
Kyler Knobbe: --they have original works of authorship. There's original--
Sandra Day O'Connor: --In the yellow pages?
Kyler Knobbe: --The yellow pages have an original work of authorship.
Sandra Day O'Connor: I thought I understood you to say that a directory that consists only of the normal white pages is not copyrightable at all?
Kyler Knobbe: If it's solely a white page directory. This is a combined directory. That's why we say this directory is copyrightable as a whole.
William H. Rehnquist: And that is the Rural directory--
Kyler Knobbe: This is the Rural directory and the Rural directory is on file with the clerk. So is the Feist directory.
Anthony M. Kennedy: --And is the Feist directory copyrightable?
Kyler Knobbe: Yes, the Feist directory is copyrightable.
Anthony M. Kennedy: Why?
Kyler Knobbe: Because it--
Anthony M. Kennedy: If it had just the white pages... if you had just white pages?
Kyler Knobbe: --If it had just white pages and nothing more? No. That's a bad example in this case, because there's some ads on the white pages, too. But if it had just white pages and nothing more, no. It's simply an alphabetical list of name, address, and telephone number. It's available... it should be available to the public. The public has access to that.
David H. Souter: You made the remark a moment ago, I think at the time ou were holding up the Rural directory, that all of the listing information in there was in the public domain. What is your reason for saying that?
Kyler Knobbe: That the name, address, and telephone number... my name, address, and telephone number I assume is in the public domain. Once I... once I make the--
David H. Souter: What do you mean by that statement?
Kyler Knobbe: --It's available to the public. I have not paid the phone company to have an unlisted number, so I've allowed the phone company to give it to the directory information operator, to publish it. It's a preexisting fact. I have that name, address... that's my name, address, and telephone number. So it has to be public domain information. What else can it be?
David H. Souter: Well, I guess I'm not sure how you're using the term. You seem to be using the term to mean that if the subject matter of information consents to its publication, then anything which publishes that information is in the public domain. Is that what you mean?
Kyler Knobbe: That... yes, that if it's a fact, it's in the public domain. Once we publish a fact, that's part of the public domain available to any later authors. With the Court's permission I'd like to reserve my remaining time for rebuttal.
William H. Rehnquist: Very well, Mr. Knobbe. Mr. Caplinger, we'll hear now from you.
James M. Caplinger, Jr.: Mr. Chief Justice, and may it please the Court: There's two issues that I would like to address in my argument today. Number 1 is whether the Rural Telephone directory is copyrightable and specifically including the white page listing section. And number 2, whether Feist's substantial copying of this white page listing information in the copyrighted directory is an act of copyright infringement. Since this case hinges on statutory interpretation, the 1976 Copyright Act, I thought I would start right there. Section 102(a) of the 1976 Copyright Act states in part that copyright extends to original works of authorship fixed in any tangible means of expression. There were some questions of Mr. Knobbe as to did the law change in 1976 in any way. The House report setting out the congressional intent behind the 1970 act... '76 act... states, the phrase, quote, 1909 Copyright Act. Nothing changed in the way of copyrightability of telephone directories or other--
Sandra Day O'Connor: Well, what changed, of course, was the definition of compilation. Isn't that right?
James M. Caplinger, Jr.: --The--
Sandra Day O'Connor: Don't we now have in the '76 act a definition of compilation that we have to look to?
James M. Caplinger, Jr.: --Yes, Justice O'Connor. The--
Sandra Day O'Connor: And we have to apply that section, 101, I take it?
James M. Caplinger, Jr.: --No, Justice O'Connor.
Sandra Day O'Connor: No?
James M. Caplinger, Jr.: No.
Sandra Day O'Connor: This isn't a compilation?
James M. Caplinger, Jr.: This is a compilation, but as the lower courts and other courts have unanimously found that a telephone directory is copyrightable under two sections, Section 102 of the '76 Copyright Act and 103. Section 102, where I stated copyright extends to original works of authorship, the congressional intent sets out... well, if you look at Section 102(a), it goes on to include various items, one of which is 102(a)(1) literary works. And on the House report, page 54, setting out the congressional intent, Congress said the term, quote, "literary works", end quote, does not connote any criterion of literary merit or qualitative value. It includes catalogs, directories, and similar factual reference or instructional works and compilations of data. And that's why the lower courts in this case said that Rural's telephone directory is copyrightable under Section 102 or 103.
Sandra Day O'Connor: Well, this is a compilation. You concede that?
James M. Caplinger, Jr.: Yes, and in [inaudible]--
Sandra Day O'Connor: And you think we don't have to apply the definition in the act of what is a compilation?
James M. Caplinger, Jr.: --Justice O'Connor, I don't think you have to, but I would recommend that the Court do... do so.
Sandra Day O'Connor: Well, I would think that's exactly where we'd look.
James M. Caplinger, Jr.: Well, maybe I misunderstood your question. What... what I was saying that you can look under either one. Directories are included in 102, but we'd also say that it's included under 103. And 103 was added in 1976 to encompass... well, I take that back. The 1909, the previous Federal Copyright Act, specifically set out directories. And I believe that in my interpretation of the legislative intent, because of the creation of so many different types of catalogues, encyclopedias, and directories, especially in light of new technology encyclopedias.
Sandra Day O'Connor: Now, you can't copyright the facts contained in the white pages, can you?
James M. Caplinger, Jr.: No. What is--
Sandra Day O'Connor: So what is to prevent Feist from looking at your directory and taking the listings of names and telephone numbers and including them in their own--
James M. Caplinger, Jr.: --Well, the... Justice O'Connor--
Sandra Day O'Connor: --as factual material?
James M. Caplinger, Jr.: --Justice O'Connor, we are not alleging that the copyright in the telephone directory extends to the names... to the particular name and particular number. What a copyright and a compilation extends to is the... is to the work of authorship on the part of the author.
Sandra Day O'Connor: Well, what Feist did was to take the listings, names and telephone numbers, and use them in their own directory.
James M. Caplinger, Jr.: Yes, and Justice O'Connor, I'm saying that the white page listings are not preexisting material. The name by itself. The address by itself. But without the telephone company being author of compiling and creating a listing... when I say listing it means all here--
Sandra Day O'Connor: Well, didn't the telephone company, Rural, simply make an alphabetical listing of all telephone subscribers within its geographical area covered by the book?
James M. Caplinger, Jr.: --That--
Sandra Day O'Connor: Isn't that what was done?
James M. Caplinger, Jr.: --Justice O'Connor, that was one part of the selection. I think that to... to fully answer your question, let's look right at 103, the definition of a compilation. And a compilation is a work formed by the collection and the assembly of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. What Rural Telephone... just like any other telephone company... they on a day-to-day basis gather, collect, and assemble a lot of information about the subscriber. The addresses, the towns, the types of equipment, et cetera, et cetera. There's a lot of information they receive. Then what they do is then they turn and they make the subjective decision of how to select, how to coordinate, and how to arrange that and how to create something that's a useable--
Sandra Day O'Connor: Well, isn't it just an alphabetical listing by geographic area?
James M. Caplinger, Jr.: --In this particular area, yeah, that was the decision to--
Sandra Day O'Connor: Isn't that what you have there?
James M. Caplinger, Jr.: --In this particular--
Sandra Day O'Connor: In the white pages?
James M. Caplinger, Jr.: --Yes, in this particular annual directory we decided to put out the Rural subscriber listing in alphabetical order. But we have 20... we have 26 different exchanges. And if you look back on that same map that the Court was looking at earlier, we have three distinct, noncontiguous geographic areas and that Rural Telephone made the decision to... not... to put out one directory. It could have put out 26 directories. It decided also in putting out one alphabetical directory for its white page listings, to do that not by town but to do it interlocking, include all of the towns, all of the telephone exchanges. It very well could have put out 26 different directories--
Anthony M. Kennedy: Are you saying that that's the component of originality in this case?
James M. Caplinger, Jr.: --That's one of many that the telephone company subjectively decides, or decision-making which the compilation as a whole copyrightable, not the bits and pieces. And I--
Anthony M. Kennedy: If we can assume, and I think it's true, that the name and the address and the number are a fact that's not copyrightable--
James M. Caplinger, Jr.: --Separate.
Anthony M. Kennedy: --what elements of originality have you added to those facts that make this a work of original authorship under 101?
James M. Caplinger, Jr.: Well, Justice Kennedy, I think that--
Anthony M. Kennedy: You've said... you've told us one of the things, and that is you've selected the counties in this yellow area. What else?
James M. Caplinger, Jr.: --We've--
Anthony M. Kennedy: You've alphabetized, which I think we could talk about, but I don't think that's very original. What else?
James M. Caplinger, Jr.: --We decided to, instead of... we decided to put them in one list instead of 26 telephone exchanges.
Anthony M. Kennedy: Well, that just repeats what you said before. All right.
James M. Caplinger, Jr.: Communities. We decided to include business listings within this. We decided that in some communities we only put the town where in other communities we put the full address. We also decide what name, because my full name might be a fact. But I go by several names, James, Jim, Jay, JR, et cetera. And--
Anthony M. Kennedy: I'm not stunned by the originality so far. [Laughter]
James M. Caplinger, Jr.: --Well, the congressional intent behind that says that the... in dealing with the standard of original works of authorship, it says this standard does not include requirements in novelty, ingenuity, or aesthetic merit.
Anthony M. Kennedy: Yes, but it must constitute an original work of authorship?
James M. Caplinger, Jr.: Yes. Yes, and those decisions. I mean, it doesn't require anything unique or novel. All directories out there are made upon facts. That's what a directory is.
Anthony M. Kennedy: Well, a dictionary of quotations... there's nothing original in it in the sense of having created something.
James M. Caplinger, Jr.: Justice Kennedy, what makes that original is how you use those facts and how you present those facts. That's where it creates an original work of authorship. If it's simply... take the idea that, well, all this is is a book of facts. All directories, and the encyclopedia included, are a compilation. That's what a compilation is. These are books of facts. What makes them original is how the author arranges that information and that's where I believe that the petitioner here has tried to create this split in the lower courts. I don't see a split in the lower courts. What you have is this... supposedly this sweat-of-the-brow theory on one side, and the original act of authorship on the other side. The original or the sweat of the brow is where the author gathers, collects, and assembles. He gathers all this factual information. But if he doesn't then somehow make a decision on how to put that in a compilation, it's not... it's not a useable compilation. You have to make... after you collect this the sweat of the brow and you have all--
Antonin Scalia: He has to say, ah-hah, I am going to put this in there alphabetically. [Laughter]
James M. Caplinger, Jr.: --No.
Antonin Scalia: He has to make that further step.
James M. Caplinger, Jr.: Justice Scalia, that is... that is one step.
Antonin Scalia: Well, my, my, that's--
James M. Caplinger, Jr.: At--
Antonin Scalia: --You think... it seems to me that we have here a statutory definition that is obviously a definition of art. If you wanted the common meaning of compilation, you would have stopped that definition right after the first phrase. It would read a compilation is a work formed by the collection and assembling of preexisting materials, period. That's the normal meaning of compilation. But the act goes on with malice aforethought and adds to that "that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. " All of that is added to tell us something and I think it's telling us something more than it has to be in alphabetical form. It's an awful lot of....
James M. Caplinger, Jr.: --Well, that's... well, Justice Scalia, I think the reason that Congress added that language is that if somebody goes out and researches and accumulates a lot of facts, that alone, the labor of collecting and assembling, you can't copyright that. What authorship is there? What creates the original work is what you do with the information that you've gathered, collected, and assembled.
Antonin Scalia: Right.
James M. Caplinger, Jr.: And--
Antonin Scalia: What has to be done is it has to be either selected, coordinated, or arranged. But it doesn't even end there. It doesn't say they have to be selected, coordinated... but they have to be selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. And we're being asked in this case to give content to what that means: "in such a way that the resulting work constitutes an original work of authorship. "
James M. Caplinger, Jr.: --Yes.
Antonin Scalia: And what... original... you--
James M. Caplinger, Jr.: Justice Scalia--
Antonin Scalia: --disclaim any inventiveness or novelty or anything else in that?
James M. Caplinger, Jr.: --Justice Scalia, the... I know that alphabetizing this list doesn't take a lot of thought, but there are other things that went into this and in fact if it wasn't for Rural Telephone being the author of this, this information would not exist. Yes, the names, addresses, and numbers are floating out there in bits and pieces, but they could still be floating until Rural Telephone took that information, decided... selected what it was going to include in the directory, how it was going to coordinate that directory, and how it was going to arrange that information. And just because it is... it appears to be simple, it still meets the test under the 1976 act.
Antonin Scalia: Well, the fact that it wouldn't be available proves not... I mean you can say that of any collection and assembling of preexisting materials. Your client could have spent a lot of time gathering all this material together. Or take a researcher in some scientific field who spends years assembling all sorts of data. And he has all the data. Let's assume he has even stored all the data alphabetically and then he dies. Now, is that... was that a copyrightable work?
James M. Caplinger, Jr.: Well, Justice Scalia--
Antonin Scalia: It would take a lot of time to reduplicate all the research he's done.
James M. Caplinger, Jr.: --Justice Scalia, in your hypothetical there, did he make a subjective decision on his selection of what information he was going to--
Antonin Scalia: Of course, anyone who selects data does that.
James M. Caplinger, Jr.: --Okay, that's one part of it. And then he... if he makes a subjective decision on how he's going to arrange that to--
Antonin Scalia: Alphabetically he decided.
James M. Caplinger, Jr.: --Well, that was his subjective decision. He could have put it backwards. He could have made a cross-reference. He could put it upside down. He made the decision. What the copyright law... it doesn't require inventiveness--
Antonin Scalia: All right.
James M. Caplinger, Jr.: --like the patent copyright law, because if... well, let me go back a second here. This book, the white page listings, are copyrightable. But that doesn't prevent, like patent law or something, from somebody else doing the same work. They can acquire the same names, addresses, towns, numbers--
Sandra Day O'Connor: But they have to start from scratch and go door to door and do it. They can't draw the facts from your white pages directory to make their own directory.
James M. Caplinger, Jr.: --Justice O'Connor--
Sandra Day O'Connor: That's your position.
James M. Caplinger, Jr.: --Justice O'Connor, under the copyright law they cannot wait till we publish this directory and then copy this information.
Sandra Day O'Connor: Well, what about... what about a weekly news magazine where the reporters go out and research some current event like the events that occurred during Watergate and they undercover all those facts and then write about them. Now, I assume their expression is copyrightable. But do you think that no one else can resort to use of the facts that they uncovered?
James M. Caplinger, Jr.: Justice O'Connor, no. I agree.
Sandra Day O'Connor: That would be [inaudible] composition.
James M. Caplinger, Jr.: No. Because those facts cannot be independently duplicated. I think that that analysis is like Harper--
Sandra Day O'Connor: Of course they can. Any other reporter could be just as hard working and inventive. They could go out and make the same inquiry.
James M. Caplinger, Jr.: --Well, excuse me, I thought you were referring to like the Harper and Row case of this Court in 1985, and in that particular case it involved a statement by Gerald... President Gerald Ford. And the second publisher used that identical factual information, and this Court had to go in depth in fair use section of this copyright act. And I think what the concerns of this Court were at that time was that there's only one statement made by the President, how can it be duplicated. In this particular situation, this information as well as then apparently in your hypothetical, if the other person can go out on their own and collect that information and express it in their own fashion, and even if, after their own independent work, if it comes out identical, that's still not copyright infringement. The copyright... the telephone company directory copyright does not extend to the names and addresses listed there but rather the compilation of the same, because there's nothing to prevent the other party from doing the same. Whereas in patent law, if Feist invented something at the same time that Rural invented it. Whoever finished inventing that first has a monopoly on it forever. But in copyright law, if they both go out and independently create something and it just happens that it's... it comes out identical or substantially identical, there's no copyright infringement there. What we're saying is that the white page listings information would not be here but for the telephone company gathering, collecting, and making a decision how to put this directory out and in fact each year it differs.
Thurgood Marshall: Mr. Caplinger, this is to protect authors, isn't it?
James M. Caplinger, Jr.: It is.
Thurgood Marshall: Who's the author of this?
James M. Caplinger, Jr.: Justice Marshall, the telephone company.
Thurgood Marshall: Oh, the telephone company.
James M. Caplinger, Jr.: Yes.
Thurgood Marshall: That's the author?
James M. Caplinger, Jr.: Yes. If it wasn't... if it wasn't for the telephone company, this directory wouldn't exist.
Thurgood Marshall: What individual. I never heard of a publisher being an author. An author's an individual, isn't he?
James M. Caplinger, Jr.: Justice Marshall, an author could be a individual, a corporation, an entity who--
Thurgood Marshall: It's usually the work of an individual, isn't it?
James M. Caplinger, Jr.: --Well, customarily when you look at artwork--
Thurgood Marshall: The phone company couldn't exist without this, could they? Would you buy a phone if you didn't get a phone book?
James M. Caplinger, Jr.: --That's questionable, but--
Thurgood Marshall: I mean, I just don't see all of the originality of somebody in this that just copied something out of a book... somebody's records.
James M. Caplinger, Jr.: --Well, Justice Marshall, maybe I can... and I know this Court in getting prepared to argue here today, they would like to hear how not only the law would be affected by the facts of this case, but the industry nationwide. I think that if you went to New York City and you took NYNEX, who spent $2 million a year putting this information together.
Thurgood Marshall: As a matter of fact they charge you to take you name out. [Laughter]
James M. Caplinger, Jr.: Well... that... Justice Marshall, I know that's the position, you know, when you're representing the telephone company, everybody hates the telephone company and utilities. But back to my point is if--
Thurgood Marshall: I'm not speaking about everybody. [Laughter]
James M. Caplinger, Jr.: --If--
Thurgood Marshall: Do you want to speak about it? [Laughter]
James M. Caplinger, Jr.: --If this Court were to find that because the bits... individual bits and pieces of this information in a directory are factual in nature and that the author's work of creating that directory, collecting, assembling, and making the decisions on how to put that out, if a defense would fly that, well, I'll wait until you put it out and spend $100,000 doing that and then I'll just copy it, like they did in this case--
John Paul Stevens: Well, just looking at the white pages alone you's still have the same number of telephone books, wouldn't you? Because you've got a... your corporation commission compels you to publish a telephone directory annually. So even if you don't have it copyrighted, you're going to have to do it.
James M. Caplinger, Jr.: --Justice Stevens, yes--
John Paul Stevens: And I suppose you're going to have to do it alphabetically, because otherwise nobody can use it.
James M. Caplinger, Jr.: --Well, Justice Stevens, I think that--
John Paul Stevens: Well, isn't that right?
James M. Caplinger, Jr.: --Well, we're told by the Kansas Corporation Commission to annually publish a directory. It doesn't say what's to be include in that directory.
John Paul Stevens: Do you suppose any other form of directory would satisfy their requirement? Have you ever seen a telephone directory of a different form than this one? That is, the white pages?
James M. Caplinger, Jr.: Justice Stevens, yes. And in fact in subsequent years this directory is different. It goes back to what I was saying earlier--
John Paul Stevens: In what respect does it differ?
James M. Caplinger, Jr.: --Because of the... of this white page listing section could have been set out in 26 different alphabetical sections of the... encompassing the same listings because... in fact we have people that say that we're completely on the other side of western Kansas--
John Paul Stevens: Oh, I see what you're saying.
James M. Caplinger, Jr.: --I would like to have you prepare your book to where you have the same listings, however, I'd like A through Z for Agra, A through Z for Bolta--
John Paul Stevens: I see. So that's your selection.
James M. Caplinger, Jr.: --Yes--
John Paul Stevens: It's not the alphabetizing, it's if you had a single telephone company with just one area of service like the City of Chicago and nothing else, say, then it would have... there would... the same telephone directory would have to be published year after year.
James M. Caplinger, Jr.: --Yes, and that would be a decision for them. I know it hard to stand here and try to say... and try to build something, because I don't believe the alphabet or alphabetizing something takes a genius of a great work of an author. But that's just one of a number of things that the author of this directory makes a decision on.
John Paul Stevens: Well, what other than the selection of which areas of service to be included in the directory would be different if we held it was not copyrightable? In fact, why would your decision be any different, whether it's copyrightable or not in your decision of whether to have one directory for all areas of service or several different directories? What difference does it make whether it's copyrighted or not?
James M. Caplinger, Jr.: I'm not sure if I understand your question.
John Paul Stevens: Well, does the copyright law protection have any impact at all on your decision as to how to assemble the white pages?
James M. Caplinger, Jr.: Yes, Justice Stevens, the copyright law expresses our contribution by the author of creating this and those listings... how those listings are listed there--
John Paul Stevens: I understand, but my question is would you create them any differently if there were no copyright law protection? And if so, why.
James M. Caplinger, Jr.: --Well, Justice Stevens, to answer that question, there's a market for this information that if we do not put accurate, complete listing information, we're not going to sell the yellow page advertising.
John Paul Stevens: Well--
James M. Caplinger, Jr.: And in northwest Kansas, the revenue from this directory and from the yellow and white--
John Paul Stevens: --From the yellow pages.
James M. Caplinger, Jr.: --goes back to... goes into the rate base to keep the rates or affect the rates to the subscribers and the owner-members of this coop. So you asked--
John Paul Stevens: Well, that's true whether or not there's copyright protection. It seems to me it's equally true whether or not there's copyright protection. The only thing your copyright protection does, as I understand it, is to give you a right to collect royalties from people who want to publish the same information and make it more broadly available to the public. At least that's all I can see. May I ask you--
James M. Caplinger, Jr.: --Your Honor, I'm not sure what the company did. I think that for their service, since this company... it's a nonprofit coop and it's owned by its members, they would take whatever steps, copyrightable or not copyrightable, to provide an up-to-date, accurate telephone directory. But it--
John Paul Stevens: --Sure, because they want people to use the service.
James M. Caplinger, Jr.: --That's right. But it would be disturbing and it would turn the Federal copyright law as directories straight up on top of its head is... if somebody is allowed to wait until somebody puts out a compilation and then say, well, all we have to do... all we have to do is dump that information into our computer and we'll rearrange it with the stroke of a computer key and then we'll copyright it ourselves. And in fact, white page listing information, there's a market for it. They sell--
John Paul Stevens: And how does that... I understand that it may intrude on your revenues from the advertising yellow pages, but otherwise it doesn't have any impact on your business at all, does it?
James M. Caplinger, Jr.: --Well, we... there is--
John Paul Stevens: You're trying to use your copyright on the white pages to protect your business... the business interest in the advertising in the yellow pages. That's what's at stake here, isn't it?
James M. Caplinger, Jr.: --Well, there is revenue produced from the white page listings. We sell advertising in the white pages in the way of bold print. We get revenue from that. Extra listings we charge. So there is... the white pages are revenue producing on their own. But in reality you are correct. Without up-to-date accurate white page listings, the yellow pages... it would be difficult to maintain sales.
Byron R. White: Are you... I take it the courts of appeals that have dealt with this are on your side.
James M. Caplinger, Jr.: Every... excuse me, Justice White, every single case since the landmark case of Leon in '37 to the most recent case of the United Telephone are... Illinois Bell--
Byron R. White: What was the earliest case that's on your side?
James M. Caplinger, Jr.: --Leon.
Byron R. White: What date was that?
James M. Caplinger, Jr.: 1937. They call it the landmark telephone copyright case.
Byron R. White: And Congress didn't intend to change the definition of an original work of art in '76.
James M. Caplinger, Jr.: Justice--
Byron R. White: I take it they knew what the law was?
James M. Caplinger, Jr.: --That's... Justice White, that's exactly right and in fact--
Anthony M. Kennedy: Well, does that bring us to Section 103? Could you spend a little time going through Section 103 with us, because I take it Feist's argument is that even if this is copyrightable, the information can still be taken subject to 103(b). Am I correct that that's the argument?
James M. Caplinger, Jr.: --Justice Kenney, in my opinion of 103 was set out--
Speaker: Justice Kennedy.
James M. Caplinger, Jr.: --I mean, Justice Kennedy. It was set out to show that the person who goes out and collects factual information just because he collects factual information and the work as a whole in a compilation is a protected work, that doesn't mean that you now own a copyright on those noncopyrightable bits of information, such as somebody's name.
David H. Souter: But isn't the problem under 103(b) and the problem for the sweat-of-the-brow theory that it provides that the protection extends only to the material contributed by the author and doesn't the word material imply something different from effort? Doesn't it imply something about the content of the work?
James M. Caplinger, Jr.: Justice Souter, my opinion as to what preexisting material means is preexisting fact--
David H. Souter: Well, this... I'm not talking about preexisting material. I'm talking about the phrase that the copyright and the compilation of derivative work extends only to the material contributed by the author. What is the material contributed by the author? Doesn't that phrase imply that there is something about the content of the work rather than the process of compiling the work that is subject to protection?
James M. Caplinger, Jr.: --Well, Justice Souter, I think you have to go back. 103 applies to two separate works. There's what is known as collective work, and that's what's at issue here, and then there's a derivative work. And a derivative work is where... and this might sound strange but since this is at issue... if we take this copyrighted telephone directory and make it into a movie. It's where you take a book and transform it to something else like a movie. They're saying that even though you change it, that the preexisting is still, you know, copyrighted or copyrightable. Maybe I'm not understanding your question.
David H. Souter: Well, it's still... unless I'm not parsing the sentence right, I think the sentence is still providing that the copyright in a compilation or derivative work, but in a compilation extends only to the material contributed by the author. And my suggestion is that material implies something about the content of the work rather than something about the effort that goes into producing the work. My question is, number 1, is that a fair reading of the provision, and number 2, if it is, what is the material in your directory that is contributed by the author?
James M. Caplinger, Jr.: Okay, Justice Souter, to answer that question is that the... again, the bits of factual information alone are not copyrightable. What the contribution is of the author in the form of collective work of a compilation is the hard work or labor as you put it.
David H. Souter: Yes, but that's not material.
James M. Caplinger, Jr.: But the--
David H. Souter: That's effort. It's thought, but it's not material. It's not something that's on the page.
James M. Caplinger, Jr.: --Well, the preexisting... what we're saying is not preexisting material is the listing information. And we are the author of putting that together. We decided--
David H. Souter: You're saying the arrangement is not preexisting.
James M. Caplinger, Jr.: --And that's part of--
David H. Souter: Right.
James M. Caplinger, Jr.: --the second part of the definition.
David H. Souter: Does material imply arrangement? In other words does... it seems to me they're talking about content, not order.
James M. Caplinger, Jr.: Well, the '76 laws have dealt with... deals with directories. It's just a compilation or collection of material or factual... factual material and that--
David H. Souter: Let me, if I may, interrupt you. Let me ask you a different question. Was this particular phrase that I'm concerned with added at the time of the amendment or was that in the preexisting law?
James M. Caplinger, Jr.: --103(b)?
David H. Souter: Yes, the phrase referring to material contributed by the author. Was that new?
James M. Caplinger, Jr.: I'm not sure. I think section--
David H. Souter: If it was new, it could very well have had an effect on the extent to which the preexisting law, which we assume provides for copyright of such a directory, survived the amendment, wouldn't it? Mr. Caplinger, before you sit down, just as a matter of curiosity, what is the status of the antitrust aspect of this case?
James M. Caplinger, Jr.: --The antitrust case--
Harry A. Blackmun: Any development yet?
James M. Caplinger, Jr.: --It is presently on appeal before the Tenth Circuit.
Harry A. Blackmun: And they... has it been argued?
James M. Caplinger, Jr.: No. I filed Rural's opening brief a week ago and Mr. Knobbe's brief is due the first of March.
Harry A. Blackmun: One last question. You come from Topeka, not northwestern Kansas. I don't know what they do in Topeka, but I would be surprised if the telephone company there didn't have a directory by street addresses. I've seen them.
James M. Caplinger, Jr.: A city directory?
Harry A. Blackmun: By street address, not alphabetically, and some of the questions here seem to assume that only an alphabetical arrangement is possible.
James M. Caplinger, Jr.: That's true, and you go back to the landmark case that I referred to earlier, Leon. That's where a second publisher took the alphabetized information and flipped it around and put it by telephone number and not A through Z. And the court said that that was still a taking of the work of a telephone company because they're the original author of that white page listing information. And also the most recent case, Illinois Bell--
William H. Rehnquist: I think you've answered the question, Mr. Caplinger. Thank you. Mr. Knobbe, do you have rebuttal? You have 5 minutes remaining.
Kyler Knobbe: Thank you, Mr. Chief Justice. I have short points. Perhaps when I answered your question, Mr. Chief Justice, that directories were copyrightable under the 1909 act but not under the '76 act, I misspoke. Our position is that facts have never been copyrightable. A point was made by Mr.--
Byron R. White: All these decision against you were just wrong.
Kyler Knobbe: --They're wrong under this definition of the statute. Sweat of the brow has been rejected by the Second and the Ninth Circuit. The main cases cited, Leon out of the Ninth and Jeweler's Circular out of the Second, have both been disavowed by those very circuits.
Anthony M. Kennedy: Is Section 103(a) an addition to the 1976 act in 103(b)?
Kyler Knobbe: Yes, I think so, Justice Kennedy. The point was that the information here in this phone directory would not exist without... but for Rural Telephone was Mr. Caplinger's statement... and that's the problem with the independent canvas theory, is that you can't get it anywhere else except out of the phone directory. You can't canvas it. It's like the opinions of this Court.
Antonin Scalia: That's very interesting, but I don't see how it has anything whatever to do with whether it's a copyrighted... I mean, that's a good argument for Congress.
Kyler Knobbe: I'll pass over it then.
Antonin Scalia: I'll make an exception for this.
Kyler Knobbe: The final point was that a copyright doesn't require inventiveness like a patent law, and I think that's correct, too. The copyright is a limited monopoly. It's not a patent on those facts, ideas, or public domain information. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Knobbe. The case is submitted.
Speaker: The honorable court is now adjourned until Monday next at ten o'clock.