The Citation Wars, Episode II

The Citation Wars, Episode I: In two 1999 decisions, the United States Circuit Court of Appeals for the Second Circuit denied West Publishing's claims of copyright protection in some of its judicial opinion enhancements and its internal page numbers. In one case, the Second Circuit held that West's additions of parallel or alternative citations, attorney information,and data on subsequent procedural history to its printed compilations of judicial opinions (known as "reporters") was factual information and as such, was not copyrightable by West. As a result, CD-Rom manufacturers Matthew Bender & Company and HyperLaw, Inc. could copy this information. (1) In the second case, the Second Circuit held that Matthew Bender and HyperLaw's "star pagination" (insertion of citations within their judicial opinions on CD-ROM to show the location of particular text in West's printed reporters) did not infringe on West's copyright. (2)

The Citation Wars, Episode II??? Fast forward to 2012. Last week, in a post on 3 Geeks and a Law Blog, Mark Gediman described how he obtained a letter from Westlaw, which included the following language (see Mark's post for the text of the entire letter):

"Please know that we have not given permission to LexisNexis for the use of Westlaw citations to unpublished decisions on the Lexis Advance research service. Moreover, we would encourage you to trust only those Westlaw citations that access directly from Westlaw Classic or WestlawNext where you can be assured of their accuracy and origin."

Gediman also included in his post the LexisNexis response to West's letter, assuring its users that Lexis Advance's Westlaw parallel citations were lawfully obtained "from reliable and accurate sources." Gediman noted that both Westlaw and LexisNexis have used parallel citations for several decades and also have built their reputations as "accurate purveyors of legal information." In commenting on Westlaw's letter, Gediman concluded ".., I think that to respond to what is really a common industry practice indicates a surprising degree of desperation."

Continuing the discussion, Joe Hodnicki, in the Law Librarian Blog, acknowledged Gediman's conclusion, but added his belief that "... Thomson Reuters is preparing the stage for an anticipated new normal when West is not the official publisher of federal and state court opinions." Referring to the First Episode of Citation Wars, he opines that "[t]hen all decisions may be 'unpublished' as defined in the [Second Circuit cases discussed above] and vendor database file citations ... may require permission to be used by a competitor."

Are these November 2012 letters from Wexis the opening volleys in the next Citation War? Is Westlaw positioning itself for the time, as Hodnicki suggests, when all courts officially publish in electronic format and adopt a universal system of official citation? Could Westlaw be serious about copyright protection for its WL citations? Or is this merely evidence that Westlaw, whose small competitors (e.g., Fastcase, CaseMaker) have never really developed into serious competition, is running scared with the advent of a third major contender for our online database dollars, Bloomberg Law?

(1)Matthew Bender & Co., Inc. v. West Publ'g Co., 158 F.3d 674 (2d Cir. 1998), cert. denied, 526 U.S. 1154 (1999).
(2)Matthew Bender & Co., Inc. v. West Publ'g Co., 158 F.3d 693 (2d Cir. 1998), cert. denied, 526 U.S. 1154 (1999).

(This entry was originally written and posted by Marsha Stacey)