Re: Copyright of laws

On Thu, 17 Nov 1994, Timothy Arnold-Moore wrote:

> 

Now, now, no fair. I don't consider _West v. Mead_ to be of significant authority for several reasons.

1. It appears to be unique in copyright jurisprudence.
2. The court was split 2-1, hardly an overwhelming majority.
3. The Eighth Circuit was, prior to _Feist,_ a "Sweat of the brow" jurisdiction, and sweat of the brow was particularly relied on by the majority (in fact, policy aside, I would argue that "sweat of the brow" would, if followed, as the panel was required to follow it, compel the _West v. Mead_ decision). As _Feist_ makes clear, however, SotB is dead, and it's quite doubtful that West could have carried the day without it.
4. The court itself made clear, in its final paragraphs, that it wasn't convinced that it was right, and it might have ruled differently if this were not an action for a preliminary injunction, with the attendent circumstance that there wasn't sufficient factual record to base a good decision upon. I think the majority just upheld the preliminary to maintain the status quo until such a record could be established, which is generally a good thing to do. I note that the MDC/West settlement prevented us from ever getting a real answer.
5. The Supreme Court in _Feist_ expressly and repeatedly cited with approval a law review article that was extremely critical of _West_ (Patterson & Joyce, "Monopolizing the Law: the Scope of Copyright Protection for Law reports and Statutory Compilations," 36 U.C.L.A. L.Rev 719 (1989)).

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Terry Carroll                    | 
Santa Clara, CA                  |      Quayle/Bono in '96. 
carrollt[_at_]netcom.com              |