West Loses Copyright Claim over Page Numbers

Article excerpt

Carol Ebbinghouse is director of the law library at Western State University College of Law in Fullerton, California. Her e-mail address is carole@wsulaw.edu.

On June 1, the U.S. Supreme Court denied review of two decisions by the 2nd U.S. Circuit Court of Appeals (based in New York) [1] that dramatically affected the position of Thomson Corporation's West Group on the scope of its copyright.

These Court of Appeals decisions [2] dealt with the following issues:

* Did the use of West's "star pagination" (an asterisk and page number within judicial opinions noting when page changes occur in published legal reporters) infringe West's copyrights in its printed compilations?

* Did the use of West Group's enhancements to individual opinions, such as parallel citations (to cases cited within opinions), the identification of counsel, and subsequent legal history information amount to copyright infringement?

* Did the use of West Group's page numbers infringe West's copyrights?

The Court of Appeals had answered each question in the negative, and the Supreme Court denied review without an opinion. The Court of Appeals decisions are now the last word on the subject. Therefore, Matthew Bender, HyperLaw, and others may copy the text of judicial opinions from West Group publications, including the "star pagination" and the enhanced information; they may also note the West publication page numbers. The court held that the West contributions lacked sufficient creativity to merit copyright protection. The companies suing West, both of which manufacture CD-ROMs, may not use the West editorial features such as synopsis, digest topics, and key numbers.

The Court of Appeals relied heavily on 1991's Feist Publications v. Rural Telephone Serv. Co., [3] which held that white pages telephone directories were collections of facts and lacked originality in content, selection, arrangement, etc. The second of the new cases specifically disagreed with and declined to follow the prior West decision [4] in which a Minnesota court of appeals upheld copyright protection for West's page numbers for internal citations and star pagination.

While the text of judicial opinions falls within the public domain, West Group had steadfastly asserted copyright in the page numbers and page breaks in its reporters, and thus had created a roadblock to any upstart company that wanted to copy the opinions to sell on CD-ROM. Without the page numbers, users could not cite to a court opinion or provide the origin of a quote from an opinion. Legal citation forms have traditionally required reference to the volume number and page(s) of the reporter in which a case is published. Many states require citation to West reporters; some do not even have a competing "official" reporter.

Vendor-Neutral Citation Systems

In reaction to the unavailability of page numbers in CD-ROM products from West competitors, a few jurisdictions have changed their citation rules to a "vendor-neutral" or "universal" citation form-usually referring to paragraph numbers within the opinion for citations. [5] Two states--Louisiana and Wisconsin--have led the way toward citation reform. When asked about the Court of Appeals decisions, Marie Erickson, head of public services of the Law Library of Louisiana, said: "Yes [it] will influence the movement to vendor-neutral citations. However, I wonder whether the movement to vendor-neutral citations may have influenced the decision, because the ability to reproduce cases more cheaply on CD-ROM makes it cost-effective for more than one vendor to supply case reports."

Marcia Koslov, state librarian of Wisconsin, doesn't believe that the cases have had much impact yet. …