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.

ADS


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:: Alan D. Sugarman       Federal Appeals on Disc tm CD-ROM  ::
:: President              Opinions of US Courts of Appeals   ::
::                        1993 to Date - All Circuits        :: 
:: HyperLaw, Inc.         Registered Trademark               :: 
:: P.O. Box 1176	  DO NOT SHORT CIRCUIT YOUR CLIENTS  ::
:: New York, NY 10023                                        ::
:: sugarman@hyperlaw.com   212-787-2812   212-496-4138(fax)  ::
::                                                           ::
::              http://www.hyperlaw.com                      ::
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