High court lets copyright decision stand

The Supreme Court won't decide whether published court decisions are entitled to copyright protection, leaving one of new media's thorniest legal questions without a definitive answer.

3 min read
The Supreme Court will not decide whether published court decisions are entitled to copyright protection, leaving one of new media's more difficult legal questions without a definitive answer.

Tuesday's action by the high court, taken without comment, means legal research giant West Publishing cannot bar online publisher Matthew Bender and other competitors from copying decisions published in West's legal reference books.

In refusing to hear the matter, the Supreme Court let stand a lower court ruling issued last fall that said court decisions, along with West's popular method for citing them, lacked the necessary elements to qualify for copyright protection. That decision, issued by the U.S. Court of Appeals for the Second Circuit in New York, directly contradicted an earlier ruling from a separate appeals court in Minnesota.

The Supreme Court's denial of West's appeal means the split in appellate law will continue to overshadow online publishing, some legal experts argued.

The ease of copying and publishing decisions online could dramatically alter the landscape for the legal research business. Prices charged by traditional publishers such as West and Lexis Nexis typically have been so high that only attorneys and other high-paid professionals could afford them. The explosion of Web portal sites such as Findlaw and Hyperlaw could put court decisions in the hands of anyone with a connection to the Internet.

But legal questions could dog that dream. In addition to West's legal challenges, a bill making its way through Congress could hamper smaller challengers from providing comparable services.

One of the issues clouding the picture is a decision from the mid 1980s issued by the U.S. Court of Appeals for the Eighth Circuit in St. Louis. Holding that West's citation method for referring to court cases was eligible for copyright protection, the ruling forbid Lexis Nexis from using it to cross-reference its online decisions. West's "star pagination" system has become the de facto way for courts to refer to cases, making alternate citation systems of little value.

"This whole [citation] question is uncertain and content producers have to tread very gingerly because of the fear they may be held liable in the Eighth Circuit," said Eugene Volokh, a law professor at the University of California at Los Angeles. "It is something that the [Supreme[ Court eventually should deal with."

But Elliot Brown, a partner at Irell & Manella representing Matthew Bender in the case, said the Supreme Court's refusal to hear the case "is a clear signal" that it doesn't agree with the Eighth Circuit ruling. "We're delighted that the Supreme Court has finalized our victory in this case and indicated its agreement with the Second Circuit," Brown added.

James Rittinger, an attorney representing West at Satterlee Stephens Burke & Burke, said he was disappointed the Supreme Court declined to take the case. "We would have liked to have certainty" on the citation issue, he said.

But Brown and other legal commentators downplayed the split, saying the earlier decision by the Eighth Circuit was issued before the Supreme Court in 1991 ruled that the mere pumping of resources, or "sweat of the brow," into a work did not make it eligible for copyright protection. The Constitution, the high court held in Feist Publications vs. Rural Telephone Service, required there to be a minimal amount of creativity contained in copyrighted works.

Since that decision, database owners such as West and Lexis Nexis parent Reed Elsevier have led the charge in Congress to create new protections for large collections of facts. Two weeks ago, a House subcommittee passed the Collections of Information Antipiracy Act, which would make it illegal to copy databases in most cases.

The bill faces opposition from librarians and others, who warn that it will curb the public's access to basic facts, such as stock quotes. Still, wealthy publishers are lobbying hard in support of the proposed legislation, and this week's action by the high court may give them new ammunition.

"The fact that the Supreme Court is not inclined to consider this issue may give database owners a stronger argument why there is a need for a legislative resolution," predicted Ian Ballon, a copyright attorney at Finnegan, Henderson, Farabow, Garrett & Dunner. "As a general proposition, the significance of the Internet to the economy has made the issue of database protection considerably more important than five years ago."