Given today’s technology, access to court opinions should be easier than ever. The law of the states and the federal law is in the public domain and is frequently reported electronically by the courts . . . . Small legal publishers are attempting to take advantage of this access and package less expensive computer assisted legal research tools than Westlaw and Lexis services; for example, many want to package state law on CD-ROM. Given the raw material is available these publishers should have a green light. The problem is that West Publishing, who publishes many of the State and Regional reporters and has control over the Federal Reporters, claims that their citation form, specifically the pagination of the reporters, is protected by copyright.

As a result, those who wish to become legal publishers must either receive a license from the official reporters to use their pagination and citation form or petition the court for recognition of their citation form. Publishers are free to request copies of opinions from the courts or, for those that are available, download them from electronic bulletin boards and then print them in whatever form they choose. These materials are useless, however, to many potential customers as there is no recognized way to cite to them. In turn, the fee these publishers can fetch is a fraction of that of those using West’s pagination.

In 1991, the Supreme Court held in Feist Publication v. Rural Telephone Service that in order to deserve a copyright a work must have a “creative spark” since a copyright is to reward originality. This decision has left some to doubt whether West is deserving of copyright protection for its pagination. In the 1980s, West sued Mead Data’s Lexis over the use of its pagination but the two settled out of court. Under the terms of the license agreement Lexis received, Lexis cannot relitigate so the issue is not yet settled. Efforts to get legislation on the issue passed have failed allegedly in part due to West’s strong legislative ties. [Goldberg, 1995]