Thursday, August 9, 2018
Cathay Smith, University of Montana School of Law, has published Fake Facts, Copyright Law, and the Factual Estoppel Doctrine. Here is the abstract.
Fake news may be trending, but fake news is not a new phenomenon, nor is it the only source of fake facts that pervade our society. We encounter fake facts every day in the historical or biographical books we read, the movies we watch, the maps we study, the telephone directories and dictionaries we reference, and the religious or spiritual guides we consult. While it is well-established that copyright does not protect facts because facts are discovered rather than authored, fake facts are created and can often be as original and creative as fiction. This Article is the first to offer a comprehensive analysis of copyright protection of fake facts contained in fake news and other sources. It details the different categories of fake facts, the increasing relevance of this discussion today, and courts’ inconsistent treatment of fake facts under copyright law in historic and modern case law. While fake facts may technically be protected under copyright law, public interest justifies excluding them from protection. This Article advocates for courts to apply copyright law’s factual estoppel doctrine to preclude authors from claiming their works to be fiction and, therefore, entitled to higher copyright protections where those authors previously held out fake facts as facts, with the intent that the public rely on their works as factual, if a more than de minimis portion of the public could believe that their works were factual.
Download the article from SSRN at the link.