A Matter of Facts: The Evolution of Copyright’s Fact-Exclusion and Its Implications for Disinformation and Democracy

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them deal with facts per se but instead with adjacent and related copyright doctrines. A close look at these cases, as well as at relevant legislative history, uncovers provocative aspects of the fight over facts through the nineteenth and twentieth centuries. This fight is really a debate over the evolving place of human labor and the contours of social progress regarding the production of facts in crucial periods of economic and political development. The nature of “facts” and their increasingly central role in governance and technological progress puts pressure on their control and manipulation, including by and for businesses and democratic institutions, such as legislatures and agencies. Revisiting this history amplifies the need for a broader copyright fact-exclusion and a richer public domain that will lead to doctrinal clarity for our digital age. It also has political implications for how to consider the contestability of facts in the twenty-first century as a matter of access to information and the stabilization of societal institutions – such as law, science, and a free press – that are critical for sustaining U.S. democracy