Re: Question in the Hyperlaw/Bender/West case

On Mon, Jan. 04, 1999, Timothy Arnold-Moore <tja[_at_]mds.rmit.edu.au> wrote:
>
> West's counsel have an obligation to present all of the arguments
> favourable to their client. Obviously they will present an
> interpretation most favourable to their client. West are claiming
> copyright in the selection and arrangement of material, and trying
> to use that to infer that including embedded page and volume numbers
> is a reproduction of the same selection and arrangement. I.e. the
> assumption that selection and arrangement is protected necessitates
> the conclusion that page and volume numbers are protected. This
> conclusion is wrong.
>
> If we assume that the first is protected and the second is not, Bender
> is certainly MAKING POSSIBLE the reproduction of the selection and
> arrangement of West's material using the page and volume numbers. But
> who has MADE that copy? It is not Bender, but the user. West can go
> after any user for reproducing that selection and arrangement, but
> Bender could only be liable for CONTRIBUTORY infringement, not direct
> infringement. And if there is a legitimate use for those cites other
> than constructing an infringing copy of the selection and arrangement
> (and that should not be hard to argue) surely Bender escapes even
> contributory infringement.

Dr. Arnold Moore argues HyperLaw's side -- but let me ask this -- just as devil's advocate (no pun intended in taking West's stance)...

What do the words "arrangement" and "selection" mean in a post-digital world? If I copy a smaller database into a "meta-collection" (a collection of databases) I no longer reflect your selection or your arrangement on my CD or in my database.

BUT... if I program in a search and ordering routine that allows, with the pressing of one button, viewing of the complete selection and arrangement that you used in your smaller compilation, what's the difference between this and infringement? (In other words, what is the digital solution to providing cross-references to smaller collections, while at the same time not providing a sort of "instant ability to infringe"? I think it is to hobble the search/order capacity of the larger collection to make it as hard as it would be if you were doing it with scissors in a paper set.)

Perhaps I'm defensive about this, but my original advice to HyperLaw is that they should allow this instant search/order. (This is why HyperLaw's product does not allow one to do this -- BTW.) In the end, I cannot believe that West really has any meaningful selection or arrangement in its reporters -- the selection is pretty much what a court says, and the arrangement, while it may have had a miniscule modicum of originality in the paper volumes, is destroyed when those volumes are smooshed together to form a final volume.

Carl Hartmann
<hartmann[_at_]federal-litigation.com> Received on Tue Jan 05 1999 - 14:57:25 GMT