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Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 48 U.S.P.Q.2d (BNA) 1545 (2d Cir. 1998) (full-text), cert. denied, 526 U.S. 1154 (1999).

Factual Background[]

The plaintiff's (Matthew Bender and Hyperlaw, Inc.) claimed that West has no copyrightable interest in the page numbering of its court reporters. The plaintiffs relied heavily on the 1991 U.S. Supreme Court decision in Feist Publications, Inc. v. Rural Telephone Services Co.,[1] where the Court held that names and addresses in a telephone directory were uncopyrightable facts, and rejected the "sweat of the brow" doctrine, which for years had been used to grant protection to otherwise uncopyrightable compilations of facts.

Trial Court Proceedings[]

The trial court granted plaintiffs' motion for summary judgment, holding the star pagination system was uncopyrightable:

Where and on what particular pages the text for a court opinion appears does not embody any original creation and is not, in my opinion, entitled to protection. . . . What West is trying to do is create a monopoly in reported decisions.

The U.S. Justice Department filed an amicus brief with the court supporting the plaintiffs' position.

Appellate Court Proceedings[]

The Second Circuit affirmed a lower court ruling that neither West's “star pagination” system (essentially the page breaks in its printed books) nor the text of the decisions are copyrightable.

The court refused to follow an earlier 8th Circuit decision on the same issue,[2] since it found that that decision relied upon the “sweat of the brow” theory of copyright protection for compilations, which was specifically overruled by the U.S. Supreme Court in Feist.[3] After Feist, only an original selection and arrangement of "facts” can be copyrighted.

The court held that the CD-ROMs were not unlawful copies of the arrangement of the cases in West's printed books, even though a user could theoretically “perceive” West's copyrighted arrangement with a few keystrokes. “At least absent some invitation, incentive, or facilitation not in the record here, a copyrighted arrangement is not infringed by a CD-ROM disc if a machine can perceive the arrangement only after another person uses the machine to re-arrange the material into a copyrightholder's arrangement.”

In a separate opinion, the court held that the minimal enhancements that West makes in its compilations, such as adding attorney summaries and rearranging factual matter in case captions, are not copyrightable either.


  1. 499 U.S. 340 (1991)(full-text).
  2. West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1291 (8th Cir. 1986)(full-text).
  3. 499 U.S. 340 (1991).