In yesterday’s post, I linked to a law review article that cited a court decision as “755 F.3d 496”. That’s a kind of citation that pops up a lot both in law review articles, and in court decisions and briefings themselves. It’s a reference to a decision as published in the third series of the Federal Reporter, volume 755, page 496. The Federal Reporter isn’t a government publication, though– it’s a serial issued by the private firm of West Publishing, now a part of Thomson Reuters. And it’s copyrighted.
In fact, it’s pretty emphatically copyrighted, like many other law reporters from private publishers. If you look at the inventory I’ve compiled of early 20th-century serials with renewed copyrights, you’ll see that a lot of the serials with renewals all the way back to 1923 are law reporters or related legal publications. West Publishing was particularly thorough with its renewals; for 1923, it renewed both initial issues of the Federal Reporter published shortly after the court decisions they cover, and “permanent edition” volumes, published a little bit later, that had updated and corrected copies of the ruling texts and accompanying notes.
It’s not surprising that West, and other legal publishers reporting on other jurisdictions, would be so assertive about copyright: If you publish something that’s a “must-have” for law firms, libraries, and other serious legal professionals, you can charge a lot of money for it. Pricing for Westlaw, Thomson Reuters’ online database that includes the Federal Reporter, is hard to find, but third parties note that it can easily run well over $100 per month per user. If I wanted instead to buy print copies of the Federal Reporter, the purchase options the publisher offers to me include buying individual volumes at $890 apiece, or buying the whole series as far back as 1993 for the low, low price of just over $30,000. And this pricing reflects a time when readers have more choices than they have in the past for getting court decisions. Nowadays, you can enter a recent federal case citation or a set of parties into Google or another search engine and have a pretty good chance of finding copies of the court’s rulings and decisions online. In 1923, there was no Google, and most people had few or no options for obtaining authoritative copies of many court rulings or other laws other than through a private publisher’s law reporter.
This level of monopolization and pricing for law reporters may seem odd, given their contents. By long-standing custom, the law is public domain in the United States. Section 105 of US copyright law explicitly states “Copyright protection under this title is not available for any work of the United States Government“, and that includes the official rulings and opinions of the federal courts covered in the Federal Reporter. So what can the publishers claim copyright on?
Historically, the answer has been “whatever they can get away with”. That was a lot, even as late as the early days of the Web, when there were intense struggles to make the law freely available online. Gary Wolf’s article “Who Owns the Law?”, published in Wired in 1994, gives us a detailed, dark picture of the situation then. Online access to much of the law was controlled by a duopoly of West and Lexis-Nexis (the latter now a part of RELX). West claimed (and still claims) copyright to the summary headnotes and other annotations it added to cases. That seems fairly reasonable in itself, as it can represent substantial original creative work. But since those notes are interleaved with the issuances of the court in the reporters, it can be difficult for a lay person to determine what’s public domain and what’s not– and it also means that people can’t simply mass-digitize the reporters and put the page images online, like has been done for millions of completely public-domain books. Hence, HathiTrust’s openly accessible run of the Federal Reporter as of today stops at volume 281, the last permanent-edition volume published in 1922.
But West went further than just claiming copyright on its annotations. It also claimed copyright on its editing of the decision texts (including incorporating corrections as they were issued), and even on the page numbering system it used for the decisions. As Wolf’s article notes, in the 1980s, the 8th Circuit supported West’s claims over its page numbering, which effectively gave it a monopoly as long as the court system used citations based on that page numbering system. (West would later license the numbering system to Lexis-Nexis, but no one else had a license in the early 1990s.)
The situation would improve not long after Wolf’s article was published. That same year, Hyperlaw sued West over its claims to copyright over its page numbering and edited versions of court decisions. In 1998, the 2nd Circuit issued two rulings (158 F.3d 674 and 158 F.3d 693) that struck down West’s more expansive copyright claims. As quoted by the Association of Research Libraries, the court ruled that “all of West’s alterations to judicial opinions involve the addition and arrangement of facts, or the rearrangement of data already included in the opinions, and therefore any creativity in these elements of West’s case reports lies in West’s selection and arrangement of this information. In light of accepted legal conventions and other external constraining factors, West’s choices on selection and arrangement can reasonably be viewed as obvious, typical, and lacking even minimal creativity.” On that basis, the Second Circuit denied copyright protections to them, and to their page numbering system. (A detailed contemporary analysis of the case, published after the district court ruled but before the appeals court did, can be found in Peter Thottam’s 1998 article, “Matthew Bender v. West Publishing”, published in the Berkeley Technology Law Journal.)
Since then, it’s become much easier to find court opinions online, including those derived from the Federal Reporter and other law reporters, complete with page number citations, but stripped of any external annotations. And even those annotations may not always be copyrighted. A recent decision by the 11th Circuit notes that when annotations are “an inextricable part of the official codification” of the law, they might not qualify for copyright protection. In Georgia, an annotated code was declared to be the official version of state law, and Georgia asserted a copyright over it based on the annotations. (Ironically, those annotations were made by Matthew Bender and Co., the same firm that challenged West’s expansive copyright claims to its law reporters.) After Georgia sued Public.resource.org, an organization that digitized the complete annotated code, the appeals court ruled that “no valid copyright interest can be asserted in any part” of the annotated code. (There’s a nice summary of this case and some related ongoing legal actions at the website of the Electronic Frontier Foundation, which is representing Public.resource.org.)
Could this ruling serve as a precedent to open up other annotated publications, such as, for instance, annotated court decisions, if they were effectively the official records of those decisions? I can’t say for sure, or whether that would apply to older volumes of the Federal Reporter, since I’m not a lawyer and don’t have deep knowledge of how that publication was treated back in the 1920s. But I find it an interesting question to consider. In the meantime, we’ll have some more Federal Reporter volumes entering the public domain the long way, via expiration of their copyright terms, 27 days from now.
I say above that “there was no Google” in 1923. Strictly speaking, there was a Google then: not the search and advertising company we know today, but another Google that was the brand of a media franchise that continues to this day. It’s partly in the public domain now, and more of it will be in the public domain next month. I’ll talk more about it, and the challenges in determining which parts are in the public domain, in tomorrow’s calendar entry.