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WEST LOSES STAR-PAGINATION COPYRIGHT CASE TO MATTHEW BENDER AND HYPERLAW Judge John S. Martin, United States District Court, Southern District of New York, today granted from the bench Matthew Bender's and HyperLaw's motions to declare West star-pagination copyright law invalid. A written opinion is expected next week. The transcript of Judge Martin's remarks will be placed on HyperLaw's web site next week as well. Judge Martin characterized the star-pagination as a fact indicating an "accident where particular text appears" and after quoting the Copyright Clause of the US Constitution, quipped "I knew we fought the revolution for some reason." Judge Martin also ordered a trial on HyperLaw's motion seeking to copy the text of court opinions from West books because he was concerned that an appellate judge might find an issue of fact, but he stated that based on the facts as he understood them, he would have ruled for HyperLaw and may issue a Judgment NOV at the trial. The trial was then scheduled for Jan. 27, 1997. Arguing for HyperLaw was Carl J. Hartmann III (212-595-0959) who represents HyperLaw along with Paul Ruskin, Lorence Kessler, and Alan Sugarman. Morgan Chu and Elliot Brown of Irell & Minella were present for Matthew Bender but Chu rested on Matthew Bender's papers. Arguing for West was Joseph Musilek of Schatz Paquin. Attorneys from the Antitrust Division of the US Dept. of Justice, which had filed an amicus brief, also attended the hearing. In addition, Katherine Downing, President of Matthew Bender was present: she has been fighting this issue since 1985 when she was at Lexis. Ten other Thomson and West lawyers were also present.
Ct. Law Tribune Reporter Tom Scheffey was present At the Nov. 22, Oral Argument. Here is his report as posted on Counsel Connect. Originally From: Tom Scheffey -- CT Law Tribune - Fairfield Forum: West Copyright Defeated Date: Fri Nov 22 22:01:50 1996 Subject: West Copyright Defeat U.S. District Judge John S. Martin, ruling from the bench Nov. 22 in Manhattan, found that West Publishing Company has nocopyrightable interest in its page numbering system for caselaw--refuting a claim that West has successfully used for decadesto corner most of the market for state and federal case law. It could signal the beginning of the end for West s virtual monopoly in publishing citable versions of state and federal caselaw, and make the law more of a public commodity. Martin granted summary judgment to competing publisher MatthewBender & Co., and partial summary judgment to Hyperlaw, Inc., bothof New York, which are seeking to cross- reference Wests pagenumbers in CD-ROM case law collections. The inclusion of thesenumerals, known as star pagination would share theindustry-standard roadmap of West s book and page numbers amongother publishers, increasing competition in the legal publishingindustry. After hearing over an hour of argument from lawyers for Bender,West and Hyperlaw, Martin declared, I m going to grant summaryjudgment to Matthew Bender with respect to star pagination. Inso doing, he came to the opposite conclusion reached in previousfederal cases in the Eighth Circuit court of appeals, which haveheld that the star pagination is a protected, private, part ofWest s compilation copyright. Martin said : "Where and on what particular pages the text for acourt opinion appears does not embody any original creation and isnot, in my opinion, entitled to protection." The U.S. JusticeDepartment, in the midst of West's aquisition by the ThomsonPublishing Co. this summer, filed an amicus curiae briefsupporting Bender and opposing West s copyright claim in starpagination. In Washington, another federal judge has the finalmerger approval of West and Thomson under review. The lay of the land of copyright shifted in 1991, when the U.S.Supreme Court decided Feist Publications v. Rural Telephone, whichconcluded that names and addresses in a telephone book wereuncopyrightable facts, not an original creative effort, and werenot the publisher s intellectual property. It rejected any sweat of the brow basis, ruling that copyright protectsorginality. Martin s ruling is the first decision to hold that West has noright to its star pagination, and, if upheld by the Second Circuit, would create a split ripe for Supreme Court determination. He also set a Jan. 27 trial date for Hyperlaw schallenge to West s claim that no competitor can copy the text of decisions directly from West books.
West Press Release. November 25, 1996 Statement From West Information Publishing Group Regarding Recent Ruling To date, three courts have found in favor of West's star pagination copyright claims--and one has not. There is a conflict that obviously needs to be resolved. West will appeal the decision. We still believe that our copyrights protects against unauthorized star pagination. West's reporting of case opinions in the National Reporter System includes selecting, editing and arranging of case law reports and West's page numbers express that arrangement.