Litigation and Consolidation 3
I. A Brief History 3
II. The First Big Challenge: Mead Data Central v. West Publishing Co. 4
III. The Tide Turns: Feist and Industry Consolidation 4
IV. Thomson Buys Legal Publishers, Prompts Antitrust Investigation 5
V. Industry Litigation Spreads: The Bender, Hyperlaw and Oasis Cases 7
VI. The Industry after Bender: Legal Publishers Consolidate 9
VII. The Business of Legal Publishing in 2004 11
VIII. Proposed Legislative Protection 13
IX. Existing Legal Protections 15
Appendix A- Trademarks 18
Appendix B- Patents 26
Appendix C- Copyrights 28
Appendix D- Acquisitions Timeline 32
When it comes to legal data, lawyers and their clients are willing to pay a premium for accuracy, speed, quality and ease of use. As such, the legal information market is highly profitable and has been so for the last 120 years. Lawyers have long demonstrated a willingness to pay for up-to-the-minute access to information in an easily accessible format. While there are currently discount and “free” sources of law, attorneys have demonstrated a preference for the more expensive services.
The providers of these services, legal publishers, have litigated against each other over their copyright in court decisions since the early nineteenth century.1 United States copyright law has been tailored to encourage publication of court decisions by for-profit compilers.2 As such, “no reporter has or can have any copyright in the written opinions delivered by th[e] court; and . . . the judges thereof cannot confer on any reporter any such right,” but reporters have a copyright interest in their own reporting of the court’s decisions.3 To remain competitive against low-cost providers of legal information, legal publishers have jealously guarded their proprietary methods of reporting court decisions.4 Recently, the major legal publishers have come together in support of legislation that would give them short-term copyright-like protection for their databases, even if these databases contain information that is non-copyrightable.5 Copyright law has historically not been applicable to mere facts,6and a database is, by definition, a compilation of facts.7 This legislation would be directly in opposition to the law established by the United States Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., which prohibited compilers of information from claiming copyright for unoriginal compilations of facts.8Feist established that “originality, not simply hard work, is the constitutionally mandated prerequisite for copyright protection.”9 This standard was further refined by the Second Circuit in Matthew Bender & Co. v. West Publishing Co., where the court held that the West Publishing Company (“West”) did not hold copyright in the items in its databases and as such a competitor could freely copy the text of court decisions from this database and market a CD-ROM containing these decisions.10 This paper will examine the history of litigation and consolidation in the legal publishing market; then it will examine the current economics of the legal publishing market, addressing specifically the abnormally large profit margins these publishers enjoy; finally, the paper will discuss the current protections available to legal publishers and it will analyze the implications of granting these publishers copyright-like protection in their databases.