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.


:: 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               :: 
:: New York, NY 10023                                        ::
::   212-787-2812   212-496-4138(fax)  ::
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