Copyright of Legal Materials: From Wheaton to West - Shaping the Practice of Law in America
Cheskis, Joel Howard, Communications and the Law
In 1889, John West was one of three legal publishers given an opportunity to write comments on the state of the legal publishing field in a "Symposium of Law Publishers" in the American Law Review. Among other things, West said "Knowledge is of two kinds, we know a subject ourselves or we know where we can find information upon it."(1) Although West Publishing Company was at that time still in its infancy and the legal publishing "war" was not yet: settled completely, West's contribution to the symposium embodied the significance and dramatic metamorphosis of the legal publishing field in the 1880s. These changes had possibly the greatest impact on American jurisprudence from its civilized formation to the present and perhaps will remain the single greatest influence on the practice of law well into the future. West's rise as the dominant legal publisher in the United States(2) has impacted the practice of law in this country more than any other single factor and, in the process, has saved, formulated, and ultimately engulfed the very backbone of the United States legal system--the common law doctrine of stare decisis.(3) This "backbone" and West's influence, however, have not escaped the other influences that have further defined the American legal system, such as the copyright protection afforded to legal materials, which has formed the basis of the metamorphosis and which now slowly may be diminishing.
The constitutional guarantee of copyright protection afforded to West's (and other legal publisher's) reports has been a tremendous factor in building the legal publishing industry, West's rise to the top, and consequently, how American law is practiced. The U.S. Constitution grants Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."(4) Some bystanders may wonder why the founding fathers of this country were compelled during the drafting of the Constitution to specifically articulate copyright protection, amongst all other issues that could have been included. In Mazer v. Stein,(5) however, the U.S. Supreme Court stated that the economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in science and the useful arts. John West personified this economic philosophy and utilized copyright protection, among other things, to build his legal publishing empire. Some of West's competitors have argued that the copyright protection West relied, and continues to rely, upon creates a stranglehold in the industry and prevents fair competition in the legal publishing marketplace(6) including impeding their entry into electronic forms of legal materials.(7)
The issue of copyright protection has roots dating back to early English Law and has been litigated numerous times over the past two hundred years in the United States, including several times before the Supreme Court. More specifically, the Supreme Court has addressed the issue of copyright protection of legal materials on a disproportionate number of occasions which has even further entwined its impact on the legal profession with the publishing industry.
While it is clear that there is no copyright available to a reporter in the judicial opinion itself, the Supreme Court long has held that the editorial comments, such as commentaries, head notes, etc., can have copyright protection.(8) Recently, however, with the emergence of new technology into the legal publishing industry, the issue of copyright protection in a feature called "star pagination" has been litigated in various federal courts with mixed results. Star pagination is the insertion of symbols and corresponding page numbers in the text of judicial decisions to indicate where internal pagebreaks occur in another text. …