Reality as Artifact: From "Feist" to Fair Use

Lawyers more than most people should be aware that what language calls "facts" are not necessarily equivalent to things that exist in the world. After all, when in ordinary conversation someone says "it's a fact that X happened," the speaker usually means, "I believe the thing I describe has happened in the world." But when a litigator presents something as a "fact," she often means only that a good faith argument can be made on behalf of its existence. Two sets of factfinders can look at the same event and come to diametrically opposed conclusions-each of which is binding, but on different people.' Most law students come to accept these disturbing phenomena as limitations inherent in an adversary system ofjustice.2 Yet lawyers have not yet accepted that all investigative efforts are similarly limited by observers' expertise, viewpoints, and tools. AJustice on the United States Supreme Court recently announced, pointing to the census as an example, that facts such as population density cannot be "created,"3 and then used that assumption to deny copyright protection to inhabitant lists on the ground that facts are only