In July 1999, the US Supreme Court denied certiorari, or refused to hear, two cases under appeal by West Publishing Company. By rejecting the request, the Supreme Court let stand two decisions by the US Court of Appeals for the Second Circuit in favor of Matthew Bender & Co. and Hyperlaw Inc.
The US Court of Appeals for the Second Circuit limited the ability of West Publishing Co. and West Publishing Corporation to copyright legal decisions. In two rulings, Matthew Bender v. West Publishing Co. and Matthew Bender Co. and Hyperlaw Inc. v. West Publishing Co. and West Publishing Corporation, the court determined that the changes that West Publishing makes to judicial opinions are not sufficient to warrant additional legal protection of the decisions. The court noted 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. Therefore, we cannot conclude that the district court clearly erred in finding that those elements that Hyperlaw seeks to copy from West's case reports are not copyrightable, and affirm."
Members of the Shared Legal Capability and the Society of American Archivists filed an amicus brief noting that "this case raises many important issues concerning public access to public domain works of the United States Government. Although the case specifically deals with access to federal court case law that is binding on United States citizens, the lower court's ruling also provides important precedent for no fee public access to other information published by the United States Government. This case typifies a growing trend of publishers laying claim to government information by making trivial alterations, which do not create copyrightable matter and which are neither annotated nor highlighted, and using those minuscule changes to assert statutory copyright protection."
The denial of certiorari by the Supreme Court rulings will likely result in further effort by West Publishing, Reed Elsevier, and other proponents of the database legislation to press for additional protections of databases outside the scope of copyright.