Hastings Communications and Entertainment Law Journal Volume 10 | Number 1 Article 4 1-1-1987 West v. Mead Data Central: Has Copyright Protection Been Stretched Too Far Thomas P. Higgins Follow this and additional works at: https://repository.uchastings.edu/ hastings_comm_ent_law_journal Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Thomas P. Higgins, West v. Mead Data Central: Has Copyright Protection Been Stretched Too Far, 10 Hastings Comm. & Ent. L.J. 95 (1987). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol10/iss1/4 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. West v. Mead Data Central: Has Copyright Protection Been Stretched Too Far? by THOMAS P. HIGGINS* Introduction Users of Lexis1 will not find pinpoint cites2 to page numbers in West's reporters. In a decision that has raised some eye- brows in the legal community,3 the Eighth Circuit held that Mead Data Central's (MDC) case retrieval system, LEXIS, probably infringes on the copyright of West Publishing's case reporters by including West's page numbers in its database.4 The decision raises important questions about the extent of copyright protection. For example, the Arabic number system is not copyrightable,5 and neither are judicial opinions.6 How- * A.B., Vassar College; Member, Third Year class. A version of this note was entered in the Nathan Burkan Memorial Competition by Hastings College of the Law. 1. LEXIS is the computer-assisted research system created by Mead Data Cen- tral (MDC). 2. Pinpoint cites, also called jump cites or star pagination, are page breaks within the text that indicate where that part of the text can be found in another reporter. West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219, 1222 (8th Cir. 1986), cert. denied, 107 S.Ct. 962 (1987). Pinpoint cites are especially important for lawyers, law students, paralegals and judges, since the pinpoints direct the reader to the exact location of cited text in a reporter. In addition, pinpoint cites are required in briefs and other papers filed with most courts. 3. Reidinger, Cite Wars: Lexis Can't Use West's Pages, 72 A.B.A.J. 78 (1986). 4. West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir. 1986), cert. denied, 107 S.Ct. 962 (1987). 5. Id. at 1227 ("two always comes after one, and no one can copyright the mere sequence of Arabic numbers"). See also Callaghan v. Meyers, 128 U.S. 617 (1888). As counsel for Defendant Callaghan said: Ever since the invention of printing, books have been paged in numerical order, and appellee might with equal propriety claim an exclusive property in the system of Arabic numerals as in the paging of his books. Moreover, the printed paging is merely the mechanical labor of the printer, and is never performed by the author or publisher. Id. at 641 (Mr. J. L. High for Defendant Callaghan). 6. Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); Rand McNally & Co. v. Fleet Management Sys., 591 F. Supp. 726, 735 (N.D. Ill. 1983). HASTINGS COMM/ENT L. J. [Vol. 10:95 ever, compilations of judicial opinions are copyrightable.7 Was the court correct in finding that West's copyright in the compi- lations extended to include the page numbers?8 Is the decision consistent with the goals of copyright? Does the opinion reveal the inadequacies of the Copyright Act in dealing with the over- lap between new and old ways of disseminating information?9 This note addresses the questions raised by West v. MDC. Part I gives a brief overview of copyright law, including four cases that the Eighth Circuit discussed. Part II examines the opinions of the district court, the Eighth Circuit, and the sepa- rate opinion of Judge Oliver.10 Part III discusses three possible ways to change the result of West v. MDC. I The Facts West publishes volumes of court opinions which it calls its National Reporter System." The volumes contain helpful fea- tures such as indices, tables, names of counsel, synopses of the cases, and headnotes with references to West's Keynote Num- 12 bering System. MDC does not publish case reporters, but it has a computer- assisted legal research system called LEXIS.13 LEXIS allows 7. 17 U.S.C. § 103 (1976). See infra notes 24-53 and accompanying text. 8. The District Court said that "West's page numbers and its arrangement of cases are necessarily within the scope of copyright protection." West Publishing Co. v. Mead Data Central, Inc., 616 F. Supp. 1571, 1577 (D. Minn. 1985). Cf.West, 799 F.2d at 1237 (opinion of Oliver, J.). The Eighth Circuit held that "the copyright we recognize here is in West's arrangement, not in its numbering system; MDC's use of West's page numbers is problematic because it infringes West's copyrighted arrangement, not be- cause the numbers themselves are copyrighted." Id. at 1228. 9. See West, 616 F. Supp. at 1578. 10. The separate opinion of Judge Oliver was twice as long as the majority opinion of Judge Arnold. While some of the separate opinion concerns procedure, see id. at 1230-31, the remainder concerns copyright. 11. These are well-known in the legal profession: Supreme Court Reporter, Fed- eral Reporter, Federal Supplement, California Reporter, New York Supplement, North Eastern Reporter, et al. For a complete listing, see WEST'S LAW FINDER: A REASEARCH MANUAL FOR LAWYERS 5-10 (rev. ed. 1985). 12. Key Number Digests are indices published by West. The Key Number is a fixed number given to a specific point of case law, such as Intoxicating Liquors Key Number 285. Attorneys can go to the Key Digests under that heading and find other cases that deal with the subject. Generally speaking, "[a] complete report of a decided case usually includes the syl- labus or headnote; the names of the respective counsel ... the statement of the case ...and the opinion of the court." 77 C.J.S. Reports § 2 (1982). 13. See supra note 1. As MDC states, LEXIS is a versatile research tool: "LEXIS 1987] STRETCHING COPYRIGHT PROTECTION users to review court opinions and statutes on a computer. MDC announced that it planned to include page numbers from West's reporters in its database, enabling its users to know ex- actly where the text on the screen could be found in West's reporters.14 Thus, LEXIS users would be able to research through LEXIS instead of West's reporters, but still be able to give pinpoint cites to West's reporters. MDC called its pro- 15 posed service "star pagination.' When West heard about MDC's intentions, it sought a pre- 16 liminary injunction in the U.S. District Court of Minnesota. The District Court granted the injunction 17 and MDC appealed. The Eighth Circuit affirmed, finding that MDC's use of the page numbers probably infringed on West's copyright.1 " John W. Oliver, Senior District Judge, filed a separate opinion con- curring with the procedural analysis but dissenting from the majority's view of the copyright issues. 9 II General Copyright Law A. Historical Background Ages before Sir William Blackstone published his famed Commentaries, 0 the Irish King Diarmed settled a dispute be- tween Abbot Fennian and St. Columba over the latter's copying of the Abbot's Psalter, finding for the Abbot and declaring "to every cow her calf."' 2' This is the essential tenet of copyright law: the author or originator of certain literary works or artis- tic productions has a vested right to make copies of the works, publish them, and sell them.22 ..can do research impossible by any other means. Here's an example ....Of all law review articles on LEXIS... which has the most footnotes? The solution.., is quick, startlingly simple, and makes effective use of LEXIS' literalism." Great Lexpecta- tions: Mead Data Central's Newsletter for Law Schools, Dec. 1984, at 1. LEXIS' chief competitor is Westlaw, West Publishing's computer-assisted research system. 14. West, 799 F.2d. at 1222. 15. Id. 16. West, 616 F. Supp. at 1571. 17. Id. 18. West, 799 F.2d at 1219. 19. Id. at 1230. 20. W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND IN FOUR BOOKS (Tucker ed. 1803). 21. W. PATRY, LATMAN'S THE COPYRIGHT LAW 2 (6th ed. 1986). 22. Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539, 547 (1985). HASTINGS COMM/ENT L. J. [Vol. 10:95 American copyright law is a direct descendant of English law, 23 particularly the Statute of Anne.24 The Statute of Anne, the first statute concerned exclusively with copyright,25 was also the first to recognize specifically the rights of authors.26 Federal power to enact copyright statutes is expressly pro- 2 vided by the Constitution. ' The first U.S. copyright statute was the Copyright Act of 1790.28 Numerous revisions and amendments took place over the next century29 until the Copy- right Act of 1909.30 The 1909 Act was the product of several years of painstaking effort and "discussion on the part of every ''3 1 interest involved, including eminent members of the bar. The 1909 Act was in turn replaced by the Copyright Act of 1976,32 which greatly simplified the trigger mechanism for pro- tection of works33 and was intended to be flexible enough to accommodate new technologies such as computer programs and electronic databases.