Intellectual Property Protection of Fact-based Works
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Intellectual Property Protection of Fact-based Works

Copyright and Its Alternatives

Edited by Robert F. Brauneis

The US Supreme Court decision in Feist Publications Inc. v. Rural Telephone Service Co. held that factual matter is not subject to copyright protection because it is not original to the author. The decision dramatically rejected a two-century-old tradition of protecting factual compilations under copyright. The contributors to this book reassess this decision and its implications, approaching the protection of factual matter from a range of perspectives: policy, historical, comparative, empirical and philosophical.
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Chapter 9: The Third Party Problem: Assessing the Protection of Information Through Tort Law

Sharon K. Sandeen


Sharon K. Sandeen* INTRODUCTION A lot of attention has been paid to the question whether intellectual property (patents, copyrights, trademarks, and trade secrets) and other forms of information are property and should be treated as such.1 To many owners and creators of information, the characterization of information as property provides the moral and legal imperative for its protection.2 However, property law has its limits.3 Although characterizing information as property may * Professor of Law, Hamline University School of Law, St. Paul, Minnesota, U.S.A. © 2008 Sharon K. Sandeen. The author wishes to thank Professor Robert Brauneis of The George Washington University Law School for inviting her to contribute to this book. She is also thankful for the research assistance of Karly Kauf, Rachel Knudson, and Emily Sipiorski. Finally, the author is forever indebted to Beverly Rubens Gordon for first teaching her about torts. Hopefully, she did her masterful instruction justice. 1 See for example, Lemley, Mark A. (2005), ‘Property, Intellectual Property, and Free Riding’, 83 Texas L. Rev. 1031; Mossoff, Adam (2003), ‘What is Property? Putting the Pieces Back Together’, 45 Ariz. L. Rev. 371; Lessig, Lawrence (2002), ‘The Architecture of Innovation’, 51 Duke L.J. 1783; Kieff, F. Scott (2001), ‘Property Rights and Property Rules for Commercializing Inventions’, 85 Minn. L. Rev. 697; Radin, Margaret Jane (1996), ‘Property Evolving in Cyberspace’, 15 J.L. & Com. 509; and Brennan, Timothy J. (1993), ‘Copyright, Property, and the Right to Deny’, 68 Chi. Kent L. Rev. 675. 2 See for example, Lessig, Lawrence (2004), Free Culture:...

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