West Files Brief in Second Circuit Claiming the Right to Copyright Court Opinions

Sept 23, 1997

From: Alan Sugarman
Subject: West Files Brief in Second Circuit Claiming the Right to Copyright Court Opinions
To: Multiple recipients of list
Shut the Doors Says Thomson and Reed Elsevier ... and The Judicial Conference fumbles again.

West Publishing (and its Canadian parent Thomson Corporation) on September 28, 1997, filed a Brief on Appeal in the United States Court of Appeals For The Second Circuit in HyperLaw v. West. West is appealing the decision of Judge John S. Martin, USDJ, Southern District of New York, that West may not copyright its versions of judicial opinions (excluding headnotes, of course.) HyperLaw's brief is due in 30 days. Amicus briefs opposing the West position must be filed within that 30 day period (together with a motion to file an amicus). Professor Arthur Miller of Harvard Law School is of counsel to West on the brief.

A copy of the brief in PDF format is available on HyperLaw's WEB site. This is a 1.4 MB file.

Matthew Bender, although a co-plaintiff below, did not challenge the text copyright in its initial complaint, but subsequently filed a parallel action in the SDNY, after Matthew Bender shut down an unsuccessful multi-million dollar project to collect authoritative federal district court opinions from the districts in New York State for just a five year period. Matthew Bender had also purchased a database of Texas opinions copied from West case reports by a company called Curtis Hill. Thomson, prior to it acquisition of West, acquired the same West derived database from Curtis Hill and its subsidieary Lawyers Cooperative published the opinions copied from West books on a CD-ROM of Texas law.

Reed Elsevier (the Dutch English-Company which owns Lexis) is filing an amicus brief. HyperLaw has not consented to Reed Elsevier's amicus, because HyperLaw believes West adequately represents the interests of Reed Elsevier. West had sued Lexis in 1988 because Lexis had copied years of case reports from West in order to create the Lexis database. As part of a settlement in 1988 (which included settling a separate citation case), West granted a license to Lexis to copy West books.

Reed Elsevier's stock fell 300 million dollars the day after the Martin decision.

Soon thereafter, Reed Elsevier circulated a white paper urging employees and others to support a database protection bill that would pull the rug out from under this Martin decision as well as an earlier Martin decision relating to the copyright of West citations. Someone is the House Judiciary Committee is expected to file a Thomson/West/Reed Elsevier/Lehman authored database protection bill (under which the West books would be a database) in the next few weeks and to immediately thereafter hold hearings.

Of course this same House Judiciary Committee is in the position to pressure the Judicial Conference to be more responsive to the widespread support for the ABA citation proposal, which the Judicial Conference just nixed after a committee report implied that the Judicial Conference did not have the power to establish a citation format to be included in court disseminated opinions and after most federal judges expressed satisfaction with the present system under which West handles the mechanics of opinion publication and citation for the judges who do not pay for access to court opinions out of their personal funds.

Also, the committee urged the status quo, which favors West, because it did not wish to appear to favor one side or another in the litigation challenging West's copyrights.

The ability to copy text from West books is not included in the citation license that West offered to DOJ as a carrot to approve the acquisition of West by Thomson in 1995. This led critics to characterize the license as a license to number blank pages. Although DOJ filed an amicus brief in support of HyperLaw and Mathew Bender on the citation appeal, it is not know what position DOJ will take on the text appeal.

In addition, Judge Freedman of the USDC District of Columbia pressured Thomson to sweeten the license by providing for a retroactive fee license should the Supreme Court decide the issue against West prior to 2002.

But, without a definitive dispute in the Circuits, there is no assurance that the cases will ever reach the Supreme Court. West just paid Oasis to drop the Oasis 8th circuit appeal of a Minnesota district court opinion which upheld the West claims to its copyright of citations, in a case where the Oasis standing was dubious at best.


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