Study questions, Day 2

Constitution, Copyright statutes, Copyright regulations

  1. What is the difference between the Constitution, statutes, and regulations?
    1. Article I, section 8, clause 8 is part of the Constitution. Does it create copyright law?
    2. The statutes all have “U.S.C.” (United States Code) as part of their citation. These are copyright statutes enacted by the U.S. Congress.
    3. The last provision is a “regulation” created by the U.S. Register of Copyrights.
    4. If any of these laws conflict, which one(s) prevail? Think “rock, paper, scissors.”
  2. Are facts copyrightable? Are ideas copyrightable? See 17 U.S.C. § 102(b).
  3. Use the statutes to answer these questions:
    1. What kind of “work of authorship” is a book? A movie? The Statue of Liberty? A movie version of a Harry Potter book? See section 101, 102(a).
    2. When Netflix streams a movie, is it making a “display” or a “performance”? Whether it’s a display or a performance, would a Netflix stream be “public”? See section 101.
    3. Does section 102(a) list the only kinds of works of authorship that are possible?
    4. Can something that is in computer cache memory for 1/10 of a second by copyrighted? See section 102(a).
    5. Suppose I invent a new accounting technique. Can it be copyrighted? See section 102.
    6. You own the copyright in a particular “musical work” (lyrics & melody). I own the copyright for a “sound recording” of the same musical work (see section 101 definition). Can you prevent an analog radio station from playing the song on air? Can I?
    7. Suppose I write and record parodies of Beatles songs. I post my songs to YouTube. The parodies poke fun at The Beatles as well as 1960s culture. Further suppose I get sued by the copyright owner of the Beatles songs I use. What is your best argument that my songs constitute “fair use”? See 17 U.S.C. § 107.
    8. A Tweet is limited to 140 characters. Can it be copyrighted? See 37 CFR 202.1. If your answer under section 202.1 is “no,” can you make an argument that section 202.1 conflicts with the 17 U.S.C. § 102(a) or the Constitution?


  1. Why did Rural sue Feist?
    1. What is the legal reason Rural sued Feist?
    2. What is the real reason Rural sued Feist?
  2. How did the lower two courts rule? What does the Supreme Court do?
  3. Note that the opinion is broke into parts and subparts. What is the function of Part I? Part II.A? Part II.B? Part II.C? Part III?
  4. Where did Rural’s white pages listings come from?
    1. Who “created” the phone numbers?
    2. Who “created” the names?
    3. Does Feist deny copying from Rural? If so, why isn’t Feist automatically liable?
  5. Rural created four fictitious listings that were copied by Feist. Rural does not seem to argue that it has copyright in those listings. Do you think it should have?
  6. What kind of “work of authorship” is a white pages book? See 17 U.S.C. § 101, 102(a).
  7. In paragraph 7, the Court holds that “This case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other, that compilations of facts generally are.”
    1. Exactly what is Rural claiming copyright in? The individual white page listings? The listings as a grouping?
    2. Hint: re-read 17 U.S.C. § 101 (definitions of “compilation” and “derivative work”); also read 17 U.S.C. § 103(b).
  8. Justice O’Connor talks about “originality.” What is required for a work to be “original?”
  9. Is it hard or easy to show “originality”?
    1. Are Rural’s white pages “original”?
    2. What if you and I independently take the same photo of the law school building? Whose work is original? The first photographer’s only? Both photographers’? Why?
    3. Is this handout original? If “yes,” consider that significant parts of this handout were written by people other than Professor Nathenson. Did your answer change?
  10. Let’s talk about “labor” and tie today’s case into yesterday’s case.
    1. Recall John Locke’s theory of property rights arising from labor. Additionally, consider Justice Pitney’s majority opinion in INS v. AP (par. 14), where the majority discussed the importance of the “money, skill, and effort” of the Complainant.
    2. Contrast Justice Holmes’ dissent in INS (par. 1), where he argues that property requires “exclusion by law from interference.”
    3. Now consider Justice O’Connor’s discussion of “sweat of the brow” theory. Is Justice O’Connor’s opinion more like Locke and Pitney or more like Justice Holmes? Or does O’Connor have a very different approach?
  11. Suppose Congress disagreed with Justice O’Connor and wanted to allow copyright rights in white pages listings. Could Congress overrule Feist to allow copyright? Why or why not?
  12. Regardless of the law, what result do you think is the best? Why?
  13. Should Google have a copyright in its search-engine database?