Re: re; West page numbers and copyright in pagination

On Tue, 18 Jan 1994 STUARTCASE[_at_]delphi.com wrote:

> Re: West Page Numbers
>
> I remember at law school, not too long ago, we sent a great
> deal of time in copyright law discussing _West_v._Mead Data
> Central, 799 F.2d 1219 (8th Cir., 1986) (see, there they are; you
> can't avoid West pagination and do a proper legal cite). I don't
> have the case here at home, but I recall that the courts had
> pretty much accepted West's theory that there was enough
> creativity involved in their page layout and case selection and
> ordering process to justify copyright protection. While many of
> my colleagues thought this outrageous, it nevertheless seemed to
> be the law, and I recall that Mead Data Central (otherwise known
> as Lexis) settled by paying West a huge royalty for the privilege
> of being able to insert West page numbers into the text, and to
> use West volume and page numbers as case names and research
> guides.

"The courts" in this case was one district court and the Eighth Circuit considering a motion for a preliminary injunction. The decision in the case relied to a great extent on the effort involved in West's arrangement of each reporter volume. Since the decision in that case, the U.S. Supreme Court has issued the _Feist_ decision. While it is not an open and shut case, there are many who believe that _Feist_ would require a different result were _West_ to be decided today.

> Here in Connecticut, an independent company called CaseBase
> is putting Connecticut law and caselaw onto CD-ROM, and from what
> I have seen is using both West case numbers and Connecticut page
> numbers to identify cases, as must be done in proper legal
> reference style.
>
> I don't know if CaseBase is paying West for the privilege or
> just taking its chances, but my guess is that the only way that
> this situation can be resolved, and independent paper and CD-ROM
> publishers allowed to thrive will be to require West to grant a
> mandatory license in return for some small royalty, to allow
> independent publishers to cite its system.

I would suggest that what is needed, rather than a mandatory license, is that someone with sufficient resources should challenge the position that these page numbers are copyrightable at all. The mere assertion that they are worthy of copyright does not settle the matter.

> I don't think that the fact the cite is distributed
> electronically rather than on paper matters at all. Without a
> standard citation system based on standard -- which West has
> historically provided -- legal research will become unverifiable
> and be left in shambles. West is so deeply entrenched in the
> system that it is hard to see starting all over with a new one.
>
> Atty. Stuart Case
> stuartcase[_at_]delphi.com

I agree on the value of a standard system. As I remember _West_, the problem is not with case citation as such, West has agreed that simple case citations are in the public domain. The problem comes with cites to pages within a case.

There have been a number of proposals for new citation systems, the most credible of which would be initiated by the courts themselves. As might be imagined, there is a great deal of interest but no agreement on these proposals. I would agree that sticking with West is probably the best idea for now. I would not be so quick to assume that this means we must give West a property interest in this system.

Nick Finke
University of Cincinnati College of Law
Nick.Finke[_at_]law.uc.edu
(513)556-0103 Fax (513)556-6265 Received on Wed Jan 19 1994 - 01:33:37 GMT