December 5, 1997
The American Association of Law Libraries (AALL) took the lead amongst library associations in filing an amicus brief on the case of Hyperlaw, Inc. v. West Publishing Company. The brief, prepared for AALL by Attorney Arnold P. Lutzker of Fish & Richardson, P.C., was submitted to the United States Court of Appeals for the Second Circuit on November 26, 1997.
The brief--approved by AALL's Executive Board at its November board meeting at the request of AALL Washington Affairs Representative Robert Oakley--has been filed in response to West's appeal of the Hyperlaw v. West decision rendered last May. In the decision, the U.S. District Court in the Southern District of New York held in favor of Hyperlaw, stating, in summation, that each of the changes West makes to case reports are not sufficiently creative to result in a new copyrighted work, and taken separately or collectively, they do not result in "a distinguishable variation" of the opinion written by the court.
The brief 's Summary of Argument is based on the following three points:
First, that West is trying to obtain copyright for minuscule edits of government information, in this case, public domain judicial opinions. These changes are not enough to allow a copyright claim of originality as a derivative work or a compilation. Nor do they involve sufficient original selection, coordination or arrangement to merit copyright protection under the Supreme Court's decision in Feist.
Second, that at a minimum, West's failure to comply with the notice requirements of the Copyright Act of 1976 for the portions of its works published prior to March 1, 1989 for which they wish to claim copyright constitutes an abandonment of any claim of copyright for the editorial revisions.
Third, that reversing the District Court's decision would seriously undermine fundamental principles of copyright law and public policy. Contrary to Section 105 of the Copyright Act and longstanding copyright policy, it would severely limit the public's right of access to the broad universe of federal government information.
AALL has enlisted the financial support of a coalition of partners in the filing of this brief. AALL and its partners are known as the Shared Legal Capability (SLC): American Library Association, Association of Research Libraries, Medical Library Association, Special Libraries Association as well as the Society for American Archivists.
AALL and the SLC--while having great respect for West as a provider of a valuable digest system, including key numbering, headnotes, and case synopses--believe that this case's outcome is of significant importance well beyond the question of West's claim to copyright. If Hyperlaw were to fail in this appeal, commercial publishers of government information could claim a copyright for a government work that they have compiled, edited and disseminated. This would have a chilling effect on the public's ability to access works of the United States government.
SLC's concern is that no publishing entity should be able to assert copyright protection over public domain information by making a few changes to preexisting text or data. This case goes well beyond the primary issue of West being able to claim copyright for its court opinions. Its outcome will determine the future of no fee public access to public domain government information not only for West's commercial competitors, but also for noncommercial entities, such as libraries, who may wish to provide electronic access to court opinions or to other government information.
The full-text of the brief is available on AALLNET, AALL's World Wide Web site.
The American Association of Law Libraries was founded in 1906 to promote and enhance the value of law libraries to the legal and public communities, to foster the profession of law librarianship, and to provide leadership in the field of legal information. Today, with over 4,800 members, the Association represents law librarians and related professionals who are affiliated with a wide range of institutions: law firms; law schools; corporate legal departments; courts; and local, state and federal government agencies.