In the hearings on last year's proposed amendments to the
copyright statute that would have removed pagination of judicial
reports from the purview of the statute, West filed comments with
the Committee giving the basis of their claim to copyright. The
comments, delivered by Vance Opperman, are fascinating reading for
anyone interested in the topic. Following is an excerpt.
West's Activities in Selecting, Coordinating
and Arranging its Compilations
Clearly then, when read together, West v. Mead and Feist stress the
creative efforts -- however minimal -- that qualify compilations of all
kinds, including those of legal materials, for copyright protection as a
work of original authorship. The amount of creative, editorial
enhancements that West employs in its selection, coordination and
arrangement of case reports and statutory materials therefore deserve a
fuller explanation. believe West's editorial, decisions and efforts
clearly go far beyond the standard of "minimal degree of creativity"
contemplated by Feist. Certainly, this was the conclusion of the Courts in
West v. Mead. I an going to emphasize the reporting of federal decisions
because those decisions may be of the greatest interest to the
Subcommittee, as they were at the heart of the controversy in West v.
Mead.
1. Selection, Coordination and Arrangement of
Judicial opinions
West has made an editorial decision that it will concentrate on
reporting the decisions of courts, not state or federal agencies. Other
publishers have chosen to report administrative decisions in their
publications, but West has elected not to do this on any significant
scale. West also decides from which courts it will report opinions. It
does not select opinions from every court in the country. Currently, West
gathers selected opinions from all state appellate courts, from some state
trial courts, from all Federal district courts, from all federal appellate
courts, and from some federal courts of special jurisdiction such as the
U.S. Claims Court and the Court of International Trade. The number of
court opinions West collects is enormous, with approximately 600 opinions
from state and federal courts arriving at West each day.
West has made an editorial decision that it will generally report
federal and state judicial decisions in separate reporter publications.
Because of this decision, West initially separates the opinions it
collects, by jurisdiction into state and federal opinions.
West has decided to report federal court opinions by the court
rendering the decision; in other words, decisions of particular federal
courts are placed in the same case report publications. Thus, West
separates the opinions it collects from the U.S. Supreme Court, the U.S.
Courts of Appeals, the U.S. District Courts, the Bankruptcy Courts, as
well as specialty jurisdiction courts.
West then determines whether to report a particular opinion at all,
and, if it will be reported, whether it will be reported in a print
publication, on WESTLAW, or both. With limited exceptions, West has
decided to publish reports of all U.S. Supreme Court and Court of Appeals
decisions that it receives from those courts. West attorney-editors
evaluate the content of each decision in determining whether the decision
presents important matters of law. If it does, the editor will prepare a
synopsis and syllabus that are used in West's reports, digests, and
electronic products to facilitate research. In addition, West determines
on a case-by-case basis whether the full text of subsequent orders (such
as orders for rehearing) will be reported with the case or simply noted in
the file line.
Finally, West determines whether to report decisions without written
opinions or decisions designed "not for publication," and how to report
them if it chooses to do so. West generally reports these decisions in a
table format in its print publications, but it also has decided to report
some decisions designated "not for publication" on WESTLAW.
For U.S. District Courts, each opinion West receives is reviewed by
West editors who decide whether the opinion will be reported at all, and,
if so, whether it will be reported in a print publication or solely on
WESTLAW, or both. Generally, the West editor must conclude that the
opinion is important or will advance the law before it is designated for
print publication. In making such decisions, West editors examine such
factors as whether they believe the opinion changes the law, takes a
position among conflicting authorities, addresses an issue of first
impression in a jurisdiction or summarizes an area of the law. These are
all subjective decisions.
West editors also seek out or select particular decisions that are
cited in recent opinions, are discussed in legal newspapers or
periodicals, or that are on appeal, to determine if those opinions merit
reporter publication. West also selects and collects certain opinions of
U.S. Magistrate Judges if the opinions have been accepted by a district
judge or involve matters tried with the consent of the parties.
The editorial decision to report a district court opinion also
involves determining or selecting in which West publication the opinion
will be reported. opinions that involve application of a Rule of Civil or
Criminal Procedure may be designated for publication in Federal Rules
Decisions. Opinions that involve appeals from Bankruptcy Courts or that
involve a bankruptcy issue are, or may be, reported in Bankruptcy
Reporter. These selection and coordination decisions are often not clear
cut, as many opinions involve both procedural and substantive issues;
West's editors must determine which of these issues are most significant
in making their selections for each publication.
West also selects, collects and reports the text of certain
amendments and proposed amendments to federal rules of procedure in its
case report publications. West editors determine whether to publish these
materials, and, if so, in what publication these rules changes or
proposals should be included.
West decides as well whether to include appendices that have been
filed with an opinion and in what form they should be reported. This
decision is made by West editors, who determine if in their opinion an
appendix will be of significant use to a researcher or if it is important
to understanding the opinion.
After West has selected and coordinated the various opinions it will
report, its headnote editors summarize the facts of each case and write a
synopsis. They also identify points of law in each decision and write
headnotes -- some 310,000 headnotes every year. Headnotes are added at the
beginning of most case reports to summarize in a few words the principles
of law that are involved in the case. Finally, classification editors
determine which of West's unique key numbers should be included with each
of the headnotes. Key numbers help researchers locate cases that directly
relate to the issue or issues being researched. The key numbers represent
permanent topical categories developed by West, and are based on subject
matter. A special index contained in each volume, called a Key Number
Digest, arranges each headnote under the proper topic and key number and
gives the location of the case report that includes that particular
headnote.
West also collects, reviews and decides whether to include reports of
subsequent actions (such as orders regarding rehearing) to a case report.
After selecting a subsequent action for reporting, West then decides the
manner in which to report it. West has generally decided to report these
actions with the main case report and West usually reports the action in
an abbreviated form. However, West can, and often does, decide to report
the full text of a subsequent action, and also may report the action
separately from the main case report.
Finally, West opinion verifiers check every case report and statutory
citation contained in a court opinion and add selected parallel citations
and new citations for the cases referred to in the opinion. By the end of
each year, West has checked over 1,000,000 citations and added about
400,000 parallel citations.
It is only after all these steps have been followed that West is
finally ready to create a new volume in a case report series. Creating a
new volume involves making an editorial decision as how best to arrange
the case reports selected for reporting in that particular volume. The
arrangement of case reports selected for inclusion in volumes of West's
various case report publications differs widely. Some publications are
arranged by type of decision (for example, full case reports may be
followed by memorandum reports), while others are arranged by such
criteria as federal judicial circuit, state within the circuit, selected
groupings of states, state within such a grouping, hierarchy of court, or
combinations of these criteria. Additional material such as court rules or
proposed court rules are often arranged within the volume.
If two or more opinions are related in some way, then West often
decides to arrange reports of those opinions consecutively, in what West
calls "precede and follow" order. Opinions involving the same parties or
similar issues of law are often arranged together in this manner.
Obviously, there are many possible arrangement criteria, and these are
just some of the ones West has chosen in order to make the material in its
publications more useful and accessible to legal researchers.
In sum, each West case report volume involves a multitude of
editorial decisions regarding the selection, coordination and arrangement
of the public domain material and editorial features included therein.
Donna Bergsgaard and her colleagues at West make hundreds and perhaps
thousands of these editorial decisions every day. They are challenging
decisions and require West editors to use their creativity and experience
in order to produce a valuable, usable publication for its customers. In
sum, each volume represents an original work in which public domain
information has been greatly enhanced and organized to create a uniquely
and easily usable publication.
I would stress that West's decisions on selecting, coordinating and
arranging these materials are entirely its own, and are different than any
other publisher's case reporting decisions. As I have indicated, in
addition to the numerous instances in which West editors question, and
sometimes correct, the words and citations contained in court opinions,
they also make their own judgments as to whether a case is worthy of
reporting by West and, if so, in full or abbreviated form. Some judges
deem every one of their decisions worthy of reporting, and conversely some
courts occasionally request that an opinion not be published, but West
makes its own independent editorial decisions.
For example, the California Supreme Court often orders a California
court of appeals opinion "depublished", meaning that the opinion may not
be cited as precedent. Such "depublished" opinions are not reported in the
official California Reports. West, however, has elected not to remove such
depublished opinions from its California Reporter reports, although West
does indicate that a particular opinion has been ordered "depublished." My
point is that West alone makes the final determination as to what
decisions will be selected for reporting in its case report publications
and on WESTLAW. All of West's publications -- in all formats -reflect its
independent judgment on whether a particular case is sufficiently
important to report and, if so, how to coordinate and arrange the report
of the case.
***
Clearly, West's editorial enhancements are protected. But if
West publishes "all" of the Circuit Court of Appeals decisions, for
example, can it be said to be exercising sufficient "selection, arrange-
ment, and coordination" to meet the Feist standard?
Scott Wetzel
CD Law (a small CD-ROM publisher of Washington and Oregon law)
1000 2nd Ave., Suite 1610
Seattle WA 98104 (206) 623-1688
(hoping that it's OK for us private types to post messages)
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