Journalism Issues

Can a database be copyrighted? Can the numbers in a phone book be
copyrighted? This article addresses those questions.

Legal publisher takes a hit
By John Borland
Staff Writer, CNET News.com
November 4, 1998, 12:40 p.m. PT

A New York federal judge has ruled that legal research giant West
Publishing cannot bar other companies from copying and reprinting the
text of its published court decisions.

The ruling, if upheld by the Supreme Court, could dramatically change
the way legal research is done, giving the public broader access to
inexpensive or free versions of court cases online.

While many cases are now available on the Net, comprehensive access to
the text of U.S. decisions requires a high-priced subscription to
database services maintained by West or competitor Lexis-Nexis.

Tuesday's decision stemmed from a small New York legal publisher's
quest to publish U.S. court decisions on a CD-ROM, and ultimately on
the Internet, in a format useful to lawyers.

West Publishing, which merged with the Stamford, Connecticut-based
Thomson Publishing in 1996, has long produced what is considered the
standard legal reference source for attorneys. The company publishes
compilations of Supreme Court, appeals court, and district court
decisions, along with brief summaries of the legal issues involved in
the cases, called headnotes. The page numbering of the company's
publications has become a standard way for lawyers to cite various
decisions in court.

Enter Hyperlaw and Jeffery Bender, another small legal publisher.
Bender and Hyperlaw president Alan Sugarman wanted to include West's
page-numbering system in their own electronic research tools. Without
this reference system, they said, their electronic reference tools
would be virtually useless to attorneys.

But West demurred, saying its page-numbering system was protected by
copyright, as was the text of the decisions in its compilation books.
Bender sued in 1996, and quickly was joined by Hyperlaw.

"What they're trying to get a copyright on is like trying to get a
copyright on the chapter and verse numbering of the Bible," Sugarman
said.

Hyperlaw also asked that it be able to copy the text of old decisions
and court documents--which otherwise are unavailable--out of West's
books.

A federal district judge ruled in May 1997 that West did not have
copyright protection for its page-numbering system or for the text of
the decisions it prints, even though it makes small changes in the
text before publishing. On Tuesday, a New York appeals judge agreed.

The decision already has won praise from consumer groups who have
sought access to court decisions beyond West's books and the expensive
online services maintained by West and competitor Lexis.

"If Hyperlaw had lost this suit, 75 years of published federal court
opinions would be owned by West Publishing. For every citizen that is
expected to obey the law, this is good news," said James Love,
director of the Consumer Project on Technology, a group affiliated
with Ralph Nader. "It means the law belongs to the people, not a
private monopoly."

A West spokesman said the company was considering an appeal.

Sugarman said Wednesday that he eventually would put Supreme Court and
federal appeals court decisions on the Internet, with the
page-numbering system used by West. That would mark the first time
that decisions available on the Internet could be cited by attorneys
as easily as the copies found in library archives or in commercial
legal databases.

The Hyperlaw president said he would wait until the case had been
decided or rejected by the Supreme Court before using the West
material, however.

West spokesman Patrick Sexton downplayed the decision's effect on the
company. "This has no significant economic impact on us," he said,
noting that West already licenses its page-numbering system to outside
companies as a result of an antitrust consent decree forged during the
Thomson-West merger.

Attorneys likely will stay with West's publications even if
lower-priced competitors spring up online, Sexton said. "Lawyers will
choose to go with who they trust," he added. "We think they're going
to go with what's been tried-and-true for 126 years."

But Sugarman hopes to force more than a competitive restructuring of
the legal research market. Once he and other competitors are able to
copy decisions out of West books and reprint them or post them online,
the incentive for West to maintain its comprehensive archives may
diminish.

"The government has deferred to West, letting them become in a sense
the official archive of the law," Sugarman said. Once West's profit
incentive for providing this service dwindles, courts may be forced to
keep and post their own archives electronically, he said. "This will
make authoritative opinions available to everyone."

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