When a publisher makes a very few changes to a larger body–particularly where it is a government work, the publisher must identify which work copyright is claimed on.[31]

Section 103 of the Act, 17 U.S.C. § 103[32] makes it clear that the "copyright in a compilation or derivative work extends only to the material contributed by the author of such work[33], as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."

Moreover, subsection (b) states that "the copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material." See e.g. Lake v Columbia Broadcasting System, Inc., 140 F.Supp. 707 (D.Ca. 1956); Reyher v Children's Television Workshop, 387 F.Supp. 869, 185 USPQ 277 (S.D.N.Y. 1975) affirmed 533 F2d 87, 190 USPQ 387 (2d Cir. 1976) cert. denied 429 U.S. 980, 50 L.Ed.2d 588, 97 S.Ct. 492, 192 USPQ 64 (1976); and Suid v Newsweek Magazine, 503 F.Supp. 146, 211 USPQ 898 (D.C.D.C 1980) (Selecting and arranging quotations in a book about movies did not provide the author with a copyright in quotations or their selection to such an extent that using quotations from book was infringement.)

As stated by HyperLaw previously, Section 105 of the Act[34]states "Copyright protection under this title is not available for any work of the United States Government. . . ." When 105 is read in conjunction with Section 403, 17 U.S.C. § 403[35]it is clear that West has an affirmative burden to not merge[36]its own text with government text absent a clear distinction between the two. Section 403 states:

Sections 401(d) and 402(d) shall not apply to a work published in copies or phonorecords consisting predominantly of one or more works of the United States Government unless the notice of copyright appearing on the published copies or phonorecords to which a defendant in the copyright infringement suit had access includes a statement identifying, either affirmatively or negatively, those portions of the copies or phonorecords embodying any work or works protected under this title.[37]

West provides no statement identifying, either affirmatively or negatively, those portions of the copies. . .protected, and a failure to meet this requirement should be treated as an omission of the notice, subject to the provisions of section 405. Nor is there any great mystery regarding why this section was enacted–to stop exactly what West has tried to do–expropriate governmental works by vaguely identified, minuscule variation (created by editing or providing introductory materials). House Judiciary Committee Report No. 94-1476 and House Conference Committee Report No. 94-1733.

Section 403. Notice for Publications
Incorporating United States Works
Section 403 is aimed at a publishing practice that, while technically
justified under the present law, has been the object of considerable criticism.
In cases where a Government work is published or republished commercially, it has frequently been the practice TO ADD SOME "NEW MATTER" IN THE FORM OF AN
INTRODUCTION, EDITING, illustrations, etc., and to include a general copyright
notice in the name of the commercial publisher. [which] suggests to the
public that the bulk of the work is [not] uncopyrightable and therefore free for use.
To make the notice MEANINGFUL RATHER THAN MISLEADING, section 403 requires that, when the copies or phonorecords consist "preponderantly of one or more works of the United States Government," the copyright notice (if any) identify those parts of the work in which copyright is claimed. A failure to meet this requirement would be treated as an omission of the notice, subject to the provisions of section 405[38].

See also Levine and Squires, "Notice, deposit and registration: The importance of being formal" 24 U.C.L.A. Law Rev. 1232. Since the very beginning of this case, this is what HyperLaw has attempted to make West do. See the Mendell v. Gollust letter to Schatz, Exhibit 12 to the Complaint; and HyperLaw's letter to Schatz, May 29, 1992, Exhibit 16.

we very carefully prepared, from the West version, a redacted version of the Mendell case, stripping out all material that is arguably copyrightable, such as headnotes and key numbers. The issue is comparing the slip opinion to the redacted version. . .

Nor is there any merit whatsoever to West's protestations to the effect that a reader can somehow distinguish or intuit these "changes". For a recent example of West's evasion on this subject, see its Response numbered 27 in it Rule 3(g) statement:

27. A reader of a West case report cannot determine where West added changes to the original court opinion without a word by word comparison to the original.

RESPONSE: Denied. Many of West's editorial enhancements, such as headnotes. . .are readily apparent without a word by word comparison. Identification of other enhancements, such as parallel and alternative citations, may require closer inspection, but West's customers are aware that West adds such materials to its case reports. (Emphasis added.)

The situation is simple, if a reasonable reader[39] cannot determine what few changes the publisher has made to court opinions (as opposed to those of a judge in this case) it cannot stop copying of the slightly altered original. West effectively appropriates the original government work. West does this with malicious intent, for huge profit. When it is a governmental text, there is a affirmative statutory burden to distinguish designed to prevent this exact type of abuse.[40]

HyperLaw has stated this time and again, but West persists. Not only did HyperLaw provide arguments for this proposition in its Memorandum[41], this concept is statutory. (Moreover, West cannot go back and retroactively identify the text where it has testified that it cannot determine with certainty which changes were suggested by courts.[42])

Time and time again, in its Rule 3(g) statement, West attempts to skip around the fact that neither a reader nor West can determine which of these "changes" were made–and which were the work of West–as opposed to judges. (West now, in a valiant final effort, tries to float the idea that judges merely "suggest" changes–as if this somehow saves them from the fact that West can no longer tell this Court that West makes them, or which of those changes were "suggested" by, and are, therefore, the original authorship of judges!)

32. West acknowledges that many corrections to citations, corrections of typographical errors, and changes to the text originated from the courts. West solicits the courts to correct the text. . .

 

RESPONSE: Admitted.

 

33. Often when, after an opinion is release by a court, judges, parties and other contact West to provide changes–changes not authored by West.

 

Response: West admits that judges, parties, and other sometimes contact west to suggest changes. (Emphasis in the original.)

The Rule 3(g) statement is just a series evasions. HyperLaw implores this Court to carefully read West's statement–particularly ¶¶ 32-38. To get a real sense of what West does to evade this most basic truth, a reading of its Response numbered 47 is critical.

47. Exhibit 1-1 is an accurate description of the changes made to the initial 100 pages of Volume 1 of Federal Reporter, Third Series.

 

RESPONSE: Denied. Each case is unique. What can be said, however, is that changes and corrections to court opinions are made throughout the publication process and continue even after the publication. West does keep track of the changes and who made them. A notation is usually made in the margin of the case indicating who authorized the change. Communications with the court, such as letters, amending orders, or telephone call slips are pinned to the back of the case. Some changes are made directly on the page proofs of advance sheet pages. After advance sheet publication, the changes and corrections are noted on the advance sheet pages and stored with the correspondence. After publication of the bound volume, the corrections and changes are noted for Westlaw.

With apologies to the Court, this is a load of utter rubbish. This is evasive as to what West did in the first hundred pages–and is a lie as to West's ability to actually state who made what "suggestions" and changes. West has testified, and stated, and has since confirmed that

A notation is usually made in the margin of the case indicating who authorized the change. (Emphasis added.)

That means that many times it isn't. That means that WEST SIMPLY CANNOT TELL THIS COURT, OR ANYONE ELSE, WHICH CHANGES WERE ACTUALLY MADE BY JUDGES. West's non-retention of this material seems to be a result of cold calculation–to achieve exactly what it has achieved; a blur in which it can claim West makes changes rather than judges. But this is irrelevant–whatever its intent West has not retained the information necessary to identify which materials were the authorship of judges–and it admits this.

Then, to try to minimize this, West attempts to suggest that there is some other supporting 'paper' for all such changes. West directly contradicts its own deposition testimony–and the documents provided to HyperLaw, stating that

Communications with the court, such as letters, amending orders, or telephone call slips are pinned to the back of the case.

A lie. Sometimes West captures this information. Many times it does not. West cannot tell this Court what changes were made or, as West calls this, were "suggested" by judges[43]. See also West's answer in Response numbered 81 to HyperLaw's assertion that despite West's statements to HyperLaw, such a reading would not reveal authorship.

Other editorial enhancements. . .are apparent upon comparison of case reports to slip opinions. WHILE IT MAY NOT BE POSSIBLE TO IDENTIFY WHO AUTHORED CERTAIN CORRECTIONS TO THE TEXT OF OPINIONS, West's understanding is that many judges do see to it that corrections made by them are noted in the court's files. (Emphasis added.)

This is a hustle, a con job. West lied to HyperLaw and others about how its changes could be identified–and now it says that we all should have gone through not only the slip opinions, but back to individual case files where (it says) it is "West's understanding is that many judges do see to it that corrections made by them are noted in the court's files." That certainly gives good and clear notice as required by the statute, as to which of the materials in West's reporters are the works of the government. This is methodical deception.

Once again, HyperLaw begs this Court–it beseeches, it implores, it entreats the Court to focus on West's refusal to go through even one single volume of actual text published before this suit was initiated and state what it claims it makes that supports a copyright claim to the text of judicial decisions and to prove that they are not changes "suggested" by judges–and, if nothing else at this point, grant partial summary judgment with regard to the first hundred pages of 1 F.3d, as West simply refuses to say what it does. A corollary to this is that summary judgment should be granted with regard to everything sought where there can never be any specificity under 17 U.S.C. § 403 as to what West actually does to actual judicial text–West admits that it can never provide the statutory notice. West won't tell the Court which changes it made because either there are no more than those HyperLaw noted–and thus none which would support a copyright claim, because there were more but they were made by judges, or because West simply can't do it.

49. Once the changes described in the previous paragraph are removed from the count, a reader is left with 15 mechanical or typographical changes in 100 pages.

 

RESPONSE: Denied. There is no record to support these assertions. . .

Record? HyperLaw identified the specific 100 pages, identified the 15 changes actually made by direct comparison with West's own working papers, and stated that there were 15 changes. Were there, or weren't there?

III. CONCLUSION

HyperLaw asks that summary judgment be entered against West on both the pagination and text issues–there being no material issues of fact regarding any point necessary to the determination.

DATED: New York, New York

November 4, 1996

RESPECTFULLY SUBMITTED,


LAW OFFICES OF PAUL J. RUSKIN
Attorney for HyperLaw, Inc.
Intervenor-Plaintiff


BY: ___________________________________
PAUL J. RUSKIN, ESQ. (PR 1288)
72-08 243rd Street
Douglaston, New York 11363
Telephone: (718) 631-8834
Facsimile: (718) 631-5572

and

CARL J. HARTMANN III, ESQ.
Pro hac vice (CH 6715)
134 W. 88th Street
New York, New York 10024

and

LORENCE L. KESSLER, ESQ.
Pro hac vice
1825 I Street, N.W.
Suite 400
Washington, D.C. 20006

_______________________________

[1] Such requests were made in letters, in discovery requests, in depositions, and (most recently) in HyperLaw's motion on this issue. Return to text.

[2] HyperLaw discusses the intermediate copying non-issue first–as it is acutely enlightening as a window into West's desperation. Return to text.

[3] In other litigation, West has obscured depositions answers and then showed up at summary judgment with new, unchallenged facts. This time, West cannot do this effectively, and so it seeks a trial. Return to text.

[4] West continually refers to every statement made outside of this proceeding and every statement not made in a deposition as "hearsay". This includes statements by its own counsel testifying and writing on its behalf on the exact matters before this Court. Rule 801(d)(2) of the Federal Rules of Evidencemakes it fairly clear that a statement is not hearsay when it is "offered against a party" and is "by a person authorized by the party to make a statement concerning the subject" or "by the party's agent. . .concerning a matter within the scope of agency." Return to text.

[5] See also HyperLaw's prior letter to West dated July 1, 1991 stating "[i]t is our intention to obtain copies of Federal Reporter and Federal Supplement. . .we will remove all West Key Numbers and West Digests." Exhibit 8 to the Complaint. See also HyperLaw's letter to Mr. Schatz dated August 12, 1991, which states the indication to obtain "cases from the Federal Reporter 2d and Federal Supplement." Exhibit 10 to the Complaint. Return to text.

[6] See West's discussion about "suggestions" federal judges make for changes to text, set forth below. Return to text.

[7] Indeed, West has copied headnotes of official reporters and passed those off as West's editorial product, as coincidently shown in the random exhibits to the Affidavit of Kendall Svengallis attached to the Sugarman Affidavit in Reply as HyperLaw Exhibit 14. See the examples of case reports for kentucky, Oregon, Pennsylvania, South Carolina, Tennessee, Vermont and Wyoming and compare them to the corresponding West reports. Return to text.

[8] Such as reporters containing cases appealed in or referenced by federal appellate cases. Return to text.

[9] As the text of lower court decisions is the subject of Matthew Bender's complaint, and as West agrees that this issue will be dealt with later, there can be no prejudice claimed by West as a result of such a motion. Return to text.

[10] West states there is "one issue in this case that is ripe for summary treatment, that is [pagination]. . ." Id. at 1. Return to text.

[11] For actual production, Mr. Sugarman has testified that (and all deposition testimony from Ms. Bergsgaard used HyperLaw's exhibits in which) redacting is done directly on pages of West's Reporters. As Mr. Sugarman has repeatedly stated, states again now, and "stipulates" just in case West seeks to try this dodge again. . .There is no intermediate copy. Return to text.

[12] Schatz responded, saying (in Exhibit 13 to the Complaint , dated October 9, 1991)

You should carefully compare the enclosed copy of the public domain slip opinion in Mendell to the West case report. In addition to the West editorial material added to produce the case report. . .you will see that the slip opinion and the case report vary substantially in their selection, coordination and arrangement of material included. . .the copyright notice in 909 F.2d clearly states Copyright is not claimed as to any part of the original work prepared by a United States Government officer or employee". . .the "original work" in question here is the enclosed slip opinion which is on file with the Second Circuit and can be obtained. . .from that Court.

Return to text.

[13] See also Responses numbered 11 and 12 in West's Statement of Disputed Facts Pursuant to 3(g) (to HyperLaw's motion), dated October 14, 1996 ("3(g) statement"). West repeatedly tries to assert what it knows to be nothing more than flat out deception: "Mr. Sugarman indicated that he indicated that he intended to use scanning equipment. . .even if certain West materials were properly subject to copying by HyperLaw (e.g. text authored by courts), HyperLaw would still be infringing West's copyrights by scanning protected headnotes, synopsis and other editorial enhancements." Return to text.

[14] This is just another completely baseless legal filing by West's counsel. It is akin to West's counsel's statements to other courts and to organizations trying to understand West's claims. As set forth in HyperLaw's moving papers here, West makes these outrageous assertions about its positions and its competitors. When caught full in the act, West attempts to distance itself or simply lie about the inconsistencies. Where was the responsive affidavit of Steven Haynes after West's counsel made all sorts of representations in papers? It never materialized. See also West's Response numbered 79 in its 3(G) statement, where West "admits that this statement was made by Mr. Haynes" in a "memorandum concerning the West v. Mead litigation."

Where is the deposition of Brady Anderson stating that he did not say the things to the Supreme Court of Wisconsin set forth in HyperLaw's moving papers in the instant motion–in a recorded hearing? Missing. And where is Michael Trittipo's affidavit stating that he did not write the letters sent on the Internet? The answer is simple–Trittipo was available to do another affidavit full of horse hockey opposing Bender's motion–but once again there is only silence when West was caught masking open statements to hundreds of law librarians about HyperLaw and West's positions. It is simply abusive litigation by deception and misdirection–racking up legal fees for opponents while always delaying. Return to text.

[15] West assiduously avoids any type of page by page, case by case analysis of even a single volume of one of its reporters. Ms. Bergsgaard's attempts at statistical analysis are clever, but fail, not only by definition, but in the lack of supporting foundation, as shown by the bald assertion that "taking volume 112 as representative, more than 6% of the full case reports and mems contain file lines or are combines." Ms. Bergsgaard's statistic treats in identical fashion so-called 'file lines' and combines. Ms. Bergsgaard had the opportunity to provide the court with substantiation for her statement, and a breakdown of a full case (or better yet a full volume) of file lines, of full case combines, of mem file lines, and mem of combines. West did not do so in discovery, in response to specific questions at deposition of Ms. Bergsgaard, or in its responsive papers here.

Return to text.

[16] Again, any order of the alleged combine is lost when the advance volumes are simply jammed together to make the final volumes. The order is lost–and proceeds and follows and combines are just bits of the resultant flotsam in a blurry, unordered mix. The final volumes cannot obtain "arrangement" by some sort of derivation–even if the advance sheets once had it–which is inconceivable. Return to text.

[17] According to the inside first page of that advance sheet, the closing date for advance sheet Volume 31 was August 19, 1996. Return to text.

[18] It is interesting, as a passing matter, that this revelation by West occurred two weeks after this Court denied West's motion to dismiss HyperLaw. Return to text.

[19] The same is true with regard to any originality, creativity, value or even meaning in the choice of where West places its page breaks. West, not HyperLaw selected the Dayhoff case as an example. The Dayhoff exhibit gives some insight into the "arrangement" decision by West in placing its page breaks–for what it insists on calling star-pagination. Attached to Sugarman's Affidavit as HyperLaw Exhibit 11 is a copy of the Dayhoff case as it appears in the advance sheet volume of 86 F.3d, interleaved with the same case report as it appeared in the permanent volume of 86 F.3d. This shows that the West star-pagination breaks are completely different in the advance sheet as compared to the pagination breaks of the same case in the permanent bound volume, a fact which is not disclosed in any way to the reader. Thus, the documents submitted by West have demonstrated that there are at least four different ways in which West breaks pages for the very same case report: (1) the breaks occurring in the printed advance sheet, (2) the Westlaw version of the advance sheet, (3) the different breaks in the printed permanent version, and (4) the Westlaw version of the permanent version. These conflicting "arrangement" decisions from West's own example shows that the arrangement of star pagination consists of automated page breaks, with no creativity whatsoever. Id. at ¶ 22 through ¶ 23. See also West's admission at Response 98 in its 3(g) statement–stating that the break moves all around, and its admission at Response 110.

Return to text.

[20] This specifically contradicts West's contention at ¶ 20 of its 3(g) Statement in Support of it Motion for Summary Judgment against Matthew Bender, where West states "[n]o law, court rule, or court order dictates the selection. . .of case reports of any of West's compilations." Return to text.

[21] Even with this, however, West is merely attempting to turn more sweat of the brow into authorship–and suggests some elaborate process starting in a massive mail room with green shaded clerks sifting through opinions from different jurisdictions. In fact, case reports for the courts at issue in the Federal Reporter and the Supreme Court Reporter are delivered to West in a focused manner. (West is the slip opinion printer in the Fifth, Eleventh, First, and District of Columbia Circuits, and Thomson Publishing Company, a Canadian company which recently acquired West, is the slip printer in the Ninth and Fourth Circuit.)

Thus, in at least six circuits West knows which cases to publish in full in the Federal Reporter because the paper and electronic files are sitting in the West editorial offices, and, West merely transfers the electronic files over into its system. Ms. Bergsgaard also claims that "HyperLaw mischaracterizes the manner in which West prints slip opinions for the Fifth and Eleventh Circuit. The contract is competitively bid." Id. at Par. 20. This is a empty assertion, unsupported by any documentation, which is at conflict with the fact that both of these Circuits (which at one time were one circuit) use West and only West as its slip printer, because apparently those circuits wish to have the slip opinions contain the West digests and summaries. (Even 40,000 mechanical changes do not create authorship.)

Ms. Bergsgaard does not specify even one micharacterization made by HyperLaw. West's Fifth and Eleventh Circuit slip opinions (together with West's headnotes) load onto Westlaw only hours after release of the opinions by those Courts. The West printed case reports appear to the untrained (and even trained) eye as virtually identical to the slip opinion West printed for the Fifth Circuit.

Return to text.

[22] Ms. Bergsgaard also stated in deposition that there were no documents other than the dead copy produced to HyperLaw which would show other changes made by West. Now, she reverses her testimony and claims there are other documents including "changes made directly on the page proofs of advance sheet pages" and claims that "changes and corrections are noted on the advance sheet page proofs." (Significantly, Ms. Bergsgaard does not provide any of this other documentary proof with respect to Volume 1 of Federal Reporter, Third Series). Return to text.

[23] West's response in its 3(g) statement regarding pre-existing waiver in its relationship to LEXIS is instructive however.

89. LEXIS presently uses the first page citations without any statement of license, and West points to LEXIS' use of the first page citation (without any mention of any license) as proof to those considering alternative citation systems that the first page may be used freely by competitors.

RESPONSE: Admitted.

What West admits here is that it specifically tells courts, lawyers and law librarians that West's first page citations are "in the public domain" (verbatim from West's statement to the Wisconsin Supreme Court as echoed by West on the Internet in response to HyperLaw) and points to LEXIS' use as an example–knowing full well that this is nothing more than a total sham–as LEXIS operates under a license. See also West's response that Tritippo's statements about this were "inadmissible hearsay" despite the fact that it was a statement against interest–and tops this by saying he didn't quote the specific Wisconsin testimony despite the fact that Tritippo said that he was doing exactly that! West statement in Response numbered 90 that it "denies that it ever testified that first page citations are in the public domain" is sanctionable in light of the clearly non-hearsay statement against interest West's lawyer made in filings and testimony before the Wisconsin Supreme Court–notwithstanding the effort to use the word "effectively" to escape in Response numbered 91. See also West's two admissions about "testimony" by Dwight Opperman in response to Judge Kelley at Responses 191-92, and Vance Opperman's testimony before Congress in Response numbered 94.

Return to text.

[24] Or perhaps the Court should consider this a statement under oath before the Court–a "stipulation". Though, this would mean that West would hardly be forced to go along with anything it explicitly says.

Return to text.

[25] "To turn to an improper use."

Return to text.

[26] "To put to wrong use." Return to text.

[27] As proved by Matthew Bender in this case, the original slip opinions either do not exist (or cannot realistically be obtained) for many of the older decisions. See also the original Sugarman Aff. at ¶ 31 and Exhibit 1-27. More important, however, is the fact that even if they were obtainable (West has testified in its 3(g) statement that) many corrections are made verbally to West by courts, and a parallel reading would not reveal which of the "changes" West makes are its own and which are the court's

Return to text.

[28] West has testified that is has not kept records which would reflect all of these changes were its own work. Se the discussion, infra, regarding what records West keeps.

Return to text.

[29] See Sugarman Aff. at ¶ 13 and Exhibit 1-13, the internal West memorandum from West executive, attorney Stephen Haynes dated June 25, 1985. This memorandum states: "If we obtain a preliminary injunction, this will provide us the breathing room to bring up star paging ourselves."

Return to text.

[30] The competitors are put at a competitive disadvantage while West's intentional misuse of both the copyright and the judicial system served to profit the company handsomely. This activity goes on to this very day–it is embodied in the directly contrary statements West makes before this Court in comparison to its statements by James Schatz and West before the Supreme Court of Wisconsin. Return to text.

[31] HyperLaw stated in its Memorandum that:

L. Batlin & Son, affirming the holding of Gerlach-Barklow, stated that to demonstrate originality sufficient to support a derivative copyright, the "author [must have] contributed something more than a 'merely trivial' variation, something recognizably 'his own'. Id. As that court further explained,

[t]o extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work. (Emphasis added.)

Id. at 492. This is the very essence of what West does–it uses the weapon of indistinct claims to unidentified, minuscule variations to original court text to appropriate and monopolize public domain works. West cannot be permitted to continue to take material in the public domain, make minor, mechanical variations to it, and then assert a derivative copyright. This is particularly true of critical public documents such as judicial decisions. Return to text.

[32] Subject matter of copyright: compilations and derivative works Return to text.

[33] Subsection (a) states that "protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. This does not say "used criminally"–is says "unlawfully".

Return to text.

[34] Subject matter of copyright: United States Government works. Return to text.

[35] Notice of copyright: Publications incorporating U.S. Government works. Return to text.

[36] This comes back to the fact that the failure to identify was unintentional and was do with malicious or predatory intent. See e.g. Gund, Inc. v Swank, Inc., 673 F Supp 1233, 5 USPQ2d 1070 (S.D.N.Y. 1987) (Harmless errors committed without deceptive intent and do not invalidate copyright.)

Return to text.

[37] Act October 19, 1976, P.L. 94-553, ¶ 102, 90 Stat. 2598, provided that this section "becomes effective on January 1, 1978". Oct. 19, 1976, P.L. 94-553, Title I, § 101, 90 Stat. 2577; October 31, 1988, P.L. 100-568, § 7(c), 102 Stat. 2858.

Act Oct. 31, 1988 (effective as provided by Sec. 13 of such Act, which appears as 17 U.S.C.§101 note) merely substituted this section for one which read:

Whenever a work is published in copies or phonorecords consisting preponderantly of one or more works of the United States Government, the notice of copyright provided by sections 401 or 402 shall also include a statement identifying, either affirmatively or negatively, those portions of the copies or phonorecords embodying any work or works protected under this title."

Return to text.

[38] Notice of the wrongful nature of West's notice practices was given by HyperLaw years ago. The legislative history of section (a) of section 405 provides that '. . .Section 405(a) takes a middle-ground approach in an effort to encourage use of a copyright notice without causing unfair and unjustifiable forfeitures on technical grounds. Clause (1) provides that, as long as the omission is from "no more than a relatively small number of copies or phonorecords,' there is no effect upon the copyright owner's rights except in the case of an innocent infringement covered by section 405(b); there is no need for registration or for efforts to correct the error if this clause is applicable. The phrase 'relatively small number' is intended to be less restrictive than the phrase 'a particularly copy or copies' now in section 21 of the present law.

Under clause (2) of subsection (a), the first condition for curing an omission from a larger number of copies is that registration be made before the end of 5 years from the defective publication. This registration may have been made before the omission took place or before the work had been published in any form and, since the reasons for the omission have no bearing on the validity of copyright, there would be no need for the application to refer to them. Some time limit for registration is essential and the 5-year period is reasonable and consistent with the period provided in section 410(c).

The second condition established by clause (2) is that the copyright owner make a 'reasonable effort,' after discovering the error, to add the notice to copies or phonorecords distributed thereafter." (Emphasis added.) Return to text.

[39] And for that matter, anyone. Return to text.

[40] –West admits that it did not do this.

MATTHEW BENDER STATEMENTS OF UNDISPUTED FACT:

39. To the extent that West has edited in minor revisions, their content is impossible to ascertain absent comparison between the original source and the case as it appears in West's reporters. Nowhere in West's reporters are West's revisions specified through printing the revisions in {inverted brackets}, in a SPECIAL FONT, or otherwise. (Emphasis in original.)

WEST'S RESPONSE:

Admitted. Return to text.

[41] At 10 and 33-35. Return to text.

[42] If West suddenly discovers documentation that would allow this–after stating that there was none, and producing none–it should be both estopped and sanctioned. Return to text.

[43] West admits later in its Responses that some of the corrections which come from judges and courts are made verbally and that a parallel reading of judicial text in a West Reporter and the original text would not reveal this. There is no record.

78. Many corrections are made verbally to West by court, and a parallel reading would not reveal this fact.

RESPONSE: West admits that some corrections are suggested verbally to West by courts. Return to text.