Supreme Court in 2016 Decision Questions 2001 Second Circuit Decision denying District Court Award of Legal Fees to HyperLaw, Inc.

Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 579 U.S., 195 L. Ed. 2d 368 (2016). Though, if truth be told, despite the admonition, on remand, the District Court still denied attorneys' fees.

"And on that score, Kirtsaeng has raised serious questions about how fee-shifting actually operates in the Second Circuit. To be sure, the Court of Appeals' framing of the inquiry resembles our own: It calls for a district court to give "substantial weight" to the reasonableness of a losing party's litigating positions while also considering other relevant circumstances. See 605 Fed.Appx., at 49-50; Matthew Bender, 240 F.3d, at 122. But the Court of Appeals' language at times suggests that a finding of reasonableness raises a presumption against granting fees, see ibid.; supra, at 1983-1985 — and that goes too far in cabining how a district court must structure its analysis and what it may conclude from its review of relevant factors. Still more, district courts in the Second Circuit appear to have overly learned the Court of Appeals' lesson, turning "substantial" into more nearly "dispositive" weight. As Kirtsaeng notes, hardly any decisions in that Circuit have granted fees when the losing party raised a reasonable argument (and none have denied fees when the losing party failed to do so). See Reply Brief 15. For these reasons, we vacate the decision below so that the District Court can take another look at Kirtsaeng's fee application."


The Supreme Court sent the case back to the Kirtsaeng District Court with this observation:

For these reasons, we vacate the decision below so that the District Court can take another look at Kirtsaeng's fee application. In sending back the case for this purpose, we do not at all intimate that the District Court should reach a different conclusion. Rather, we merely ensure that the court will evaluate the motion consistent with the analysis we have set out — giving substantial weight to the reasonableness of Wiley's litigating position, but also taking into account all other relevant factors.


The Supreme Court in Kirtseng seemed to criticize the 2001 HyperLaw attorneys' fee Second Circuit decision.

[1] Compare, e.g., Matthew Bender & Co. v. West Publishing Co., 240 F.3d 116, 122 (C.A.2 2001) (giving substantial weight to objective reasonableness), with, e.g., Bond v. Blum, 317 F.3d 385, 397-398 (C.A.4 2003) (endorsing a totality-of-the-circumstances approach, without according special significance to any factor), and with, e.g., Hogan Systems, Inc. v. Cybresource Int'l, Inc., 158 F.3d 319, 325 (C.A.5 1998) (presuming that a prevailing party receives fees).

In HyperLaw's 2001 case (sub nom, Matthew Bender), Matthew Bender & Co. v. West Publishing Co., 240 F.3d 116, 122 (C.A.2 2001), the Second Circuit overruled the decision of the District Court awarding legal fees of $813,724.25 to Hyperlaw. Judge Sotomayer was part of the three judge 2001 panel, as well as the Supreme Court unanimous panel in 2016.

In its 2001 opinion, the Second Circuit stated:

We are uncertain why the District Court did not clearly address the issue because it is beyond dispute that West's arguments at trial were objectively reasonable. Both the editorial enhancements appeal and the star pagination appeal provoked vigorous dissenting opinions agreeing with West's positions.

The Second Circuitin 2001 ignored the Supreme Court decision in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991), which established that the West positions were objectionably unreasonable.

[The Second Circuit remanded, and the District Court again awarded attorney's fees to HyperLaw. HyperLaw v. West Publishing Co. sub nom Matthew Bender v. West Publishing Co. No. 94 Civ. 0589, 2001 U.S. Dist. LEXIS 8936) (S.D.N.Y July 2, 2001).

The Second Circuit then reversed the District Court in an unpublished opinion on July 17, 2002.

Note that the cases are cited under the name Mathew Bender even though the attorney's fee claim only involved HyperLaw, and also note that West did not publish the District Court decisions.]

So, Judge Sotomayer in 2016 questioned her 2001 and 2002 decisions denying attorneys' fees to HyperLaw.


But. none of this mattered for Kirtsaeng in 2016. When the case was heard again by the District Court, nothing changed except paying lip service to the Supreme Court. Ultimately, on remand, the District Court denied attorneys' fees. See the Docket and documents at Court Listener. John Wiley & Sons, Inc. v. Supap Kirtsaeng, No. 1:08-cv-07834 (District Court,) S.D. New York). Decision of December 21, 2016.


Citation to Hyperlaw decisions on the merits.

Matthew Bender & Co., Inc. v. West Pub. Co., No. 94 Civ. 0589(JSM), 1996 WL 774803 (Nov. 27, 1996), aff’d, 158 F.3d 693 (2d Cir. 1998), cert. denied, 526 U.S. 1154 (1999) (copyright claims to citations not valid).

Matthew Bender & Co. v. West Publishing Co., No. 94 Civ. 0589, 42 U.S.P.Q.2d 1930 , 1997 WL 266972 (S.D.N.Y. May 19, 1997), aff’d, 158 F.3d 693, 706 (2d Cir. 1998), cert. denied sub nom. West Publishing Co. v. HyperLaw, Inc., 526 U.S. 1154 (1999) (copyright claims to text enhancements not valid) .



Lawyerist Podcast of Alan Sugarman and HyperLaw's David v. Goliath '90s Challenge to Release Caselaw from the Monopolistic Grip of West Publishing Co.

December 21, 2017

Lawyerist Podcast #151: How Westlaw Lost its Copyright, with Alan Sugarman

Lawyerist on December 20, 2017 released a podcast interview of Alan Sugarman's overview of the history of HyperLaw's successful challenge to the monopolistic copyright claims of West Publishing Company, described by the District Court Judge as "David v. Goliath." In a case filed in 1994, HyperLaw successfully challenged West's claims to its volume and page citations and West's versions of the text of the caselaw.

Sugarman, who founded HyperLaw in 1991, also described the challenges to establishing non-proprietary citations to caselaw, featuring the essential element of the docket number of the case. Sugarman noted that the Bluebook in its 18th edition (2005) finally required attorneys when citing to Westlaw or Lexis to include the docket number of the case to allow access to the case without subscribing to proprietary databases, but this citation rule still is not followed by many practicing attorneys and state court rules. Sugarman believes that the docket number (which is immediately available when a court issues a decision) should be included, even when there is a book volume and page citation.

In the Podcast, Sugarman praised Google Scholar, relying upon the HyperLaw precedent, for making caselaw available to the public with both the text of the cases as well as the citations to published versions (e.g., West.) Here is the link to the Google version of the HyperLaw opinion declaring that West could not claim copyright in the enhanced and corrected version of it published court opinion. Matthew Bender & Co., Inc. v. West Pub. Co., 158 F.3d 674 (2d Cir. 1998). Although Matthew Bender's name is on the case, that company did not participate in the challenge to West's copyright claims to the text as published by West. Indeed, Reed Elsevier/Mead Data, which by then had acquired Matthew Bender, opposed HyperLaw's text victory in an amicus brief before the Second Circuit.

Earlier in 1992, in testimony to Congress re H.R.4426 "To amend title 17, United States Code, to exclude copyright protection for certain legal compilations," Sugarman alone laid down the marker that "enhanced text" also needed to be excluded from copyright protection, a viewpoint not at all shared by the legal publishing industry. Had the legal publishing industry prevailed, there would be no Google Scholar for caselaw today.

It did take a few years for some in the "Access to the Law" space to understand the implications of the HyperLaw litigation. One result of the "freeing of the law" is that court's feel less pressure from West and Lexis when courts release their own opinions directly to the public, although a number of courts still create barriers to bulk dissemination of caselaw. Another result is the establishment of other research services such as FastCase and Justia.

The Podcast was reviewed on December 20, 2017 by 3 Geeks and a Law Blog - Alan Sugarman's Review of Challenging Westlaw's Copyright Claims in the 1990s.

Further details may be found at:

Court Filings and Decisions in HyperLaw (and Matthew Bender) v. West Publishing

Description of Litigation by one of HyperLaw's Attorneys

New York Times May 21, 1997 - West Publishing Loses a Decision on Copyright, David Cay Johnston.

New York Times, October 9, 199, Easing Limits on Legal Publishing, Laura Mansnerus

Copyright Alan D. Sugarman December 21, 2017




Federal Judiciary Responds to Letter Objecting to Federal Judiciary Asserting that It had Exceeded the Requirement of the E-Government Act As to Access to Judicial Opinions

On July 10, 2009 HyperLaw sent a letter to the Administrative Office of U.S. Court objecting to the judiciary's letter to Congress claiming to having exceeded the requirments of the E-Government Act of 2002. We pointed out that the judiciary itselff had claimed that the spirit of the Act would require that all judicial opinions be made available free, but, that the judiciary was not following its own dictates. James Duff, Director of the Administrative Office responded in a letter of August 11, 2009, acknowledging that further work needed to be performed and detailing the efforts of the Committee on Court Adminstration and Case Managemen which discussed the issue at a meeting in June. Mr. Duff. said that:

While research continues, the Committee has asked the Administrative Office to remind courts of the E-Government Act's requirements, as well as the Judicial Conference policy, to make opinions freely available and of the automated means within the courts' case management system to do so.

We believe that this is significant - what the district and bankrkuptcy courts need to do is simply indicate on the CM/ECF system which documents are opinions. This would go a long way toward resolving the problems. Still, though, many opinions are properly marked and many district court's maintain separate web site which provided many written opinions.

Justice Alito was copied on our original letter. If in his busy days he read our submission, we are sure that he would have indicated is some way his desire to resolve these issues.

We believe that the judiciary is committed to do the right thing.


RECAP - Better Access to Public Court Records - August 14 2009

The Center for Information Technology Policy at Princeton University on August 14, 2009 introduced its new project, RECAP, to clone the federal judiciary's case management system (CM/ECF aka PACER) and to create a way to allow the public to avoid payment of $.08 a page for downloading documents.

The concept is that when CM/ECF users download a document, the document is at the same time uploaded to a RECAP's server maintained by the Internet Archive. A copy of the file is saved to the users system as well: unfortunately, the designer decided not to use the docket number to identify the case and document, but to use the internal id number used in CM/ECF. This was done as an expedient for the designers of RECAP - but, as we have discussed at length, is completely counterproductive for case law search, retrieval, linking and research. There are work arounds and we hope the designers can use their considerable technical skills to resolve this issue. We will post on this separately. It is truly unfortunate.

To upload case, one needs to use Firefox and install the plug-in available from RECAP. The concept is beautiful and actually works!

When you obtain a Docket Report in CM/ECF, if a document is available from RECAP, then if a document is available on RECAP, there is an R icon next to the document link. Click on that and you download a free copy from CM/ECF. Simply brilliant.

At the moment, the documents are not searchable on Goggle - they are flagged as no-index. And, the designers elected to not to include the metadata in the documents, as does - although there are associated xml files which have some but not all of the metadata available (more on that later).

RECAP used a number of files downloaded from free library Pacer sites until the Administrative Office shut down the program. For that reason, the existing documents on RECAP should be considered more as a test database of information, and may have little utility. RECAP is very unclear as to what they have posted and it seems they do not know themselves. They claim to have included 238,098 documents from the Southern District of New York. I then did an audit based upon cases for which there are free written opinions. I did a spot check for December of 2005, 2006, 2007 and 2008 - and none of the cases that I checked on a random basis were in the RECAP database on the Internet Archive. So, my conclusion is pretty much to not focus on that which was posted, and only consider this system looking forward. Forget any hype that this is adding new case law to the Internet. It just is not so. There are many more cases now available for free via the free written opinions report.

An example of hype: please refer to the implication at “RECAP, a Firefox plugin that frees US caselaw one page at a time” refer to the implication at “RECAP, a Firefox plugin that frees US caselaw one page at a time” The implication in this article by Malamud and Doctorow is that 20 million pages of case law are in the RECAP documents. This is not helpful nor is it truel. There may be some, but, no one can say where these documents are.

But, moving forward, this is a brilliant move (sorry about being repetitive - I cannot think of a better word) - in my view, the biggest assistance will be in making the briefs underlying the court opinions available to all.


They may need to port this over to Internet Explorer - or try to persuade federal court litigators to load in Firefox. The other problem is that the best source for getting documents is the free look that attorneys-of-record receive in a case - which is form a link in the notice of filing e-mal that each attorney receives. From the description provided by RECAP, the upload is disabled.when a user signs in as an uploading attorney of record.


The other problem for most attorneys is that when they save a file form CM/ECF, they want to have a meaningful file name - and that would mean a name that includes as a minimum the docket number. So, they are really not helping the busy practicing attorneys out all that much. I will use this and just use a search and replace perl script to rename the files by adding in the docket number.


RECAP also uploads the docket sheet - but, only the part of the docket sheet in the docket report. This is also a great assistance since docket reports are not free at all. This is nicely implemented.


Having worked with the CM/ECF database and being familiar with its workings, I must say that this is a nice piece of work - except for eschewing the docket number, which is so regrettable.


They can easily add in the docket number as a "least significant" piece of information at the end of their file name - or begriming - and just parse that out for the various file location operations that they are using. Not only will this keep junk law from making its way onto the Internet, but it may make the plug-in more attractive to users.


We will report on this futher.



HyperLaw Presentation at American Association of Law Libraries 2009 Resources

Alan Sugarman will be making a presentation at the American Association of Law Libraries Annual Convention on Tuesday, July 28, 2009 at 2:30 PM "Public Access to the Law in the YaOogle Age", Session J-3. The Chair of the session is Camilla Tubbs of Yale Law School. Professor Michael W. Carroll of American University, Washington College of Law is also on the panel. He is a founding member of Creative Commons.

Resources for the presentation and a copy of the presentation is now available here.


Suggested Readings for Presentation::


John B. West, Multiplicity of Court Opinions. 1909.

Letter sent July 8, 2009, with attachments, to the Administrative Office of the U.S. Courts objecting to the federal judiciary asserting to Congress that it has exceeded the requirements of the E-Government Act of 2002.


Links for Goggle to demonstrate metadata in PDF Title Field:

Court decision with added metadata to enhance internet searches. Metadata Enhanced Opinion.

Second court decision with added metadata. Metadata Enhanced Opinion II.


Connecticut Law Tribune Article Addresses Access to Federal District Court Opinions.
August 29, 2008

And article addressing access to federal lower court opinions and written by Thomas B. Scheffey will be published today in the Connecticut Law Tribune, following up the letter from United States District Court Judge John R. Tunheim discussed in HyperLaw's August 19, 2008 posting. Scheffey interviewed many of the current actors in the effort to have case law be made more accessible including Alan Sugarman, Carl Malamud, and others. We will post the link later and provided commentary.

Noted Copyright Law Professor David Nimmer Takes Credit for Winning Case Against His Client.
August 28, 2008

The headline is correct. We have discovered that Professor David Nimmer wrote a 222 page scholarly article in the Houston Law Review in 2001, in which Nimmer took credit for having won the text case in Matthew Bender v. West, a case in which HyperLaw, Inc, despite the case name, was the sole plaintiff, having intervened early on in the Matthew Bender v. West case.

In the appeals, Reed Eslevier (owner of Lexis) had filed an amicus brief opposing HyperLaw's text challenge. Reed Elsevier,after the case began, had entered into a joint venture with Matthew Bender. Professor Nimmer and his LA law firm of Irell & Manella at the outset of the litigation had been counsel for Matthew Bender - thus, after the acquisition (and before, we do not know who called all the shots), Irell and Manella's client was in fact Reed Elsevier.

Yet on page 48 and 49 of the Houston article, Nimmer represents that he worked on the opposition to West' s petition for certiorari - a peitition supported by Nimmer's client -- when in fact only HyperLaw opposed that petition, through its counsel of record Paul Ruskin and Carl Hartmann and with the support of Alan Sugarman. As discussed in the letters and analysis below, Nimmer managed to confuse the text and citation cases, and to make it sound as if he, Morgan Chu, and Irell & Manella were counsel on this part of the case - the part their new client OPPOSED.

We discovered the Houston article after we read the comments in Eriq Gardner's article attributed to Nimmer's partner Morgan Chu at Irell & Manella, in which Chu also conflated the separate text and citation cases, both bearing the same name "Matthew Bender v. West", and was quoted in a way where Chu also took credit for the text case, in which his firm was not involved. After sending numerous letters to Chu and Nimmer asking for clarification, we have been stonewalled. Then, in researching Nimmer's articles, we discovered the Houston Law Review Article.

We then asked UCLA Law School Dean Michael Schill to open a review as to what is commonly referred to under the rubric of "academic fraud." He has stonewalled us as well - although acknowledging one letter. We wrote the Houston Law Review and asked for a correction - also, the response has been stonewalling.

This entire debacle is more interesting in that Morgan Chu spoke at the UCLA Law School Commencement this year, the Dean of the University of Houston Law Center is one Raymond Nimmer, and David Nimmer's article was reviewed by Professor Craig Joyce of Houston Law Center.

Professor Joyce had been the author of a seminal article Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. REV. 719 (1989) (with L.R. Patterson) and other seminal related articles. When Joyce was unable for time reasons to write an amicus brief to support HyperLaw on the text appeal, his co-author on that case, Professor Ray Patterson (now deceased) wrote an amicus brief in support of HyperLaw. We readily acknowledge that Joyce and Patterson deserve major credit for the successful challenges to West.

The issue is important to us for several reasons, apart from the fact that credit is due HyperLaw, Ruskin, and Hartmann for the victory. Conflating the text case with the citation case obscures the intellectual understanding as to the continued barriers to access to case law. We always felt that West's text claims were of more consequence than the citation claim. Because of the West v. Mead case, which on its surface concerned the citation claims (but was settled with a license from West to Lexis of text and citations), many observers were and remain confused as to the nature and extent of West's claims.

We also note that although the US Department of Justice weighed in with an amicus brief supporting HyperLaw and Matthew Bender on the citation challenge, the DOJ (we believe under pressure from West and Reed Elsevier) refused to do so as to the text challenge.

Another aspect is the curious refusal of Matthew Bender to not support the text challenge, and the acquisition of Matthew Bender by Reed Elsevier which opposed HyperLaw's text challenge. Not unrelated to these odd positions by Matthew Bender and Reed Elsevier are the database protection initiatives, seeking to extend copyright protection to facts. Finally, we believe that because Judge Sweet on the appeals of the text and citation case conflated these issues, HyperLaw was denied attorneys fees on its successful David v. Goliath win against West.

Chu and Nimmer are so prestigious and accomplished in the intellectual property field - we do not understand why they do not issue a mea culpa. Nimmer could even update the discussion in his copyright treatise published by - Reed Elsevier. Oh, what a tangled web!

Please see the HyperLaw v. West page for more information as to the text and citation cases.

Following is a list of the documents to date:

Excerpts from Nimmer Dead Sea Scrolls Re Miscite to Matthew Bender HyperLaw Case

April 5, 2004 Letter Sugarman to Chu et al re Claims Made in Gardner Article

May 27, 2008 from Alan Sugarman to Dean Schill UCLA Law School re Nimmer

May 29, 2008 Letter from Alan Sugarman to Irell & Manella re Misstatements re Bender v. West.

May 17, 2008 Letter from Alan Sugarman to Irell & Manella re Misstatements re Bender v. West.

June 6, 2008 Letter Dean Schill UCLA to Sugarman

June 30, 2008 Letter Sugarman to UCLA Dean Schill

June 30, 2008 -Binder of Documents Letter to UCLA-Multiple Documents

June 30, 2008 Letter Alan Sugarman to Houston Law Review


Judicial Conference Committee to Consider Archive of District and Bankruptcy Court Opinions. August 19, 2008

In a letter to HyperLaw dated July 28, 2008, United States District Court Judge John R. Tunheim of the U.S. District Court of Minnesota and Chair of the Judicial Conference's Committee on Court Administration and Case Management, stated that this Committee would address HyperLaw's proposals to provide broader access to the lower court opinions of the federal courts. He stated that the Committee would meet in December of 2008 and would address the earlier letters sent to the Administrative Office. In the meantime, the Electronic Public Access Working Group of the Administrative Office ("AO") will be considering the issues as well.

Judge Tunheim asked that correspondence on the issue be directed to the Chief of the AO's Court Administration Policy Staff prior to September 24, 2008, in anticipation of the Electronic Public Access Working Group meeting to be held in October.

It seems that there is a general appreciation of the need to address these issues.

It is important for the policy makers to understand that access to these opinions is desired by members of the general public and interested persons, and not just attorneys. Effectively, research and quick access to all published and unpublished decisions of the lower federal courts is available only to subscribers of WestLaw and Lexis.

Policy makers also need to understand that writers and publishers of news and legal analysis, including blogs, need permanent links to these opinions, many of which are of interest not only to the general public, but to specific professions and groups impacted by many opinions.

Finally, those with vague, but ultimately hopeless, beliefs that in the future these opinions can just be scanned from West's Federal Supplement, Federal Rules Decisions, and Federal Bankruptcy Reporter need to grasp the simple truth that these print publications only contain a part of the whole.

In any event, paraphrasing the 1909 words of John B. West, what is needed are immediately available citations as and when opinions are released from the courts. In modern terms, that means exposing the opinions to search engines and linking resources the opinion identification information - court, date, docket number, docket sequence number, and, for good measure, the case name. Relying on private publishers, such as West, to provide this information for just a portion of the opinions, and many months after the release of the opinions, is in a sense retrogressive, and clearly an incomplete solution.

See HyperLaw's May 7, 2008 letter to the Administrative Office.



Hon. John R. Tunheim
U.S. District Court for the Eastern District of Minnesota
13E United States Courthouse
300 South Fourth Street
Minneapolis, MN 55415
(612) 664-5080



Abel Mattos
Court Administration Policy Staff
Administrative Office of the U.S. Courts
One Columbus Circle, N.E.

Washington, DC 20544
  Members of the Committee  

Hon. John D. Bates
U.S. District Court for the District of Columbia
E. Barrett Prettyman U.S. Courthouse
333 Constitution Avenue, Northwest

Washington, DC  20001

Hon. Robert J. Johnston
U.S. Magistrate Judge
U.S. District Court for the District of Nevada
33 S. Las Vegas Blvd.

Las Vegas, NV 89101

Hon. Amy J. St. Eve
U.S. District Court for the Northern District of Illinois
Everett McKinley Dirksen
United States Courthouse
219 South Dearborn Street

Chicago, IL 60604

Hon.  Paul D. Borman
U.S. District Court for the Eastern District of Michigan
Theodore Levin U.S. Courthouse
231 W. Lafayette Blvd., Room 740

Detroit, MI 48226

Hon. Benson Everett Legg
Chief Judge
U.S. District Court for the District of Maryland
United States Courthouse
101 West Lombard Street

Baltimore, MD 21201-2605

Hon. Sonia Sotomayor
U.S. Court Of Appeals, Second Circuit -
The Daniel Patrick Moynihan CourthousE
500 Pearl Street

NEW YORK, NY 10007

Hon. Aida M. Delgado-Colon
U.S. District Court for the District of Puerto Rico
Clemente Ruíz Nazario U.S. Courthouse          

150 Carlos Chardón Street Hato Rey, PR 00918

Hon. Ronald B. Leighton
U.S. District Court for the District of Washington
Union Station Courthouse
1717 Pacific Ave  Room 3100

Tacoma, WA  98402-9800

The Honorable T. John Ward
United States District Court
Eastern District of Texas
100 East Houston Street

Marshall, Texas 75670

Hon. Julio M. Fuentes
U.S. Court of Appeals for the Third Circuit
Federal Building & U.S. Courthouse
50 Walnut Street, Room 5032

Newark, NJ 07102

Hon. Steven D. Merryday
U.S. District Court for the Middle District of Florida
Tampa Division
Sam M. Gibbons U.S. Courthouse
801 North Florida Avenue

Tampa, Florida 33602

Hon. James B. Haines, Jr.
U.S. Bankruptcy Court for the District of Maine
537 Congress Street
2nd Floor
Portland, ME 04101

Hon. Julie A. Robinson
U.S. District Court for the District of Kansas
259 Robert J. Dole
United States Courthouse
500 State Avenue

Kansas City, KS 66101-2400


Status of Open Access to Lower Federal Court Opinions
June 30, 2008

The Judicial Conference of the United States has responded to HyperLaw's letter of May 9, 2008 concerning modifications to the federal judiciary's Case Management/Electronic Case Filing System (CM/ECF) so as to facilitate public access to the 95,000 federal district court opinions maintained in the system as a matter of course. HyperLaw's response letter of June 30, 2008 is here.

This is a very significant issue in making federal case law available to the public - only Westlaw and Lexis have any meaningful comprehensive collections of the unpublished opinions of the lower federal courts. Those who would claim that converting all the federal court cases in West's National Reporter System using the precedent established by HyperLaw's declaratory judgment challenge to West are resolving only a part of the issue. The unpublished opinions are vital. For example, in Matthew Bender v. West, there are four decisions that West chose not to publish in the Federal Supplement.

In the response letter dated June 2, 2008, James Duff, Secretary of the Judicial Conference and Director of the Administrative Office, stated that our suggestions had been forward to the Administrative Office's Electronic Public Access (EPA) Working Group, a group of judges, clerks and court technology personnel that was formed specifically to address electronic public access issues. Duff also stated that the Judicial Conference's Committee on Court Administration and Case Management was responsible for setting policy in the area of public access to court records.

In response, HyperLaw has sent a letter dated June 30, 2008 thanking Mr. Duff and providing a few examples of courts not in compliance with the E-Government Act. We are very appreciative of the efforts being made by the Judiciary and are well aware of the many issues concerning public access which need to be addressed.

The Juris Database
June 30, 2008

We are also aware of recent efforts to obtain access to the Juris database which was maintained by the Department of Justice and which, we believe, may have contained the lower court unpublished opinions prior to its demise in 1993. It is not certain what government agencies, if any, may have maintained an archive of the lower court opinions after 1994 until the 2007 full implementation of CM/ECF.

Juris was the subject of the Tax Analysts litigation in 1994-1996. HyperLaw also had filed a FOIL request, and worked with Tax Analysts and Jamie Love on the matter, and filed an affidavit in the litigation.(Jamie Love's ran the Taxpayers Assets Project and was instrumental in the release of the patent and Edgar databases.) Between 1974 and 1994, the Justice Department and Air Force operated databases which we believe included the published and unpublished federal court opinions. recently announced that it had obtained a copy of "the" Juris" database with over 2 million pages of text, which is said to include case law. We have browsed through the directory at There is even a text file in the directory mplying that the files include case law. But, alas, it does appear, based upon a random sample, that this collection consists mostly of non-case law material such as complaints filed by the Department of Justice, acts of Congress, hearings, statutes, regulations and bid documents. Other than US Supreme Court cases and the early 1991-93 court of appeals decisions as collected by HyperLaw at that time, the data provided does not include case law.

This is not surprising since it seems clear that what was obtained by Public Resource is a version of Juris that was scrubbed to remove all case law material obtained or exchanged with West. So, this is not "the" Juris database, but a version of "the" Juris database with case law removed. It also seems clear that what West feared, when it cancelled its contracts with West in 1993, is that DOJ would continue to collect cases from the courts - such as the court of appeals opinions - and would in the process create the much feared federal database of federal court opinions.

But, that has now been created by the Judiciary and is residing on the federal judiciary's CM/ECF servers.

The announcement that "the" Juris database has been obtained is more unfortunate overhype.


Federal Judiciary Should Open Access to Opinions from the U.S. District and Bankruptcy Courts.
May 9, 2008

The federal judiciary should open up access to opinions of the approximately 200 U.S. district and bankruptcy courts, says HyperLaw's Alan D. Sugarman in letters to the federal judiciary and to Senator Joseph Lieberman. Lieberman's committee recently held hearings on the E-Government Reauthorization Act of 2007 relating to accessibility of government information on the Internet.

HyperLaw, which has been lobbying the federal judiciary since 1991 on this issue, asked James Duff, Director of the Administrative Office of U.S. Courts to create a subset of the judicial opinion documents presently included in the case documents in the federal judiciary's Case Management/Electronic Case Filing System. (CM/ECF). Duff acts as Secretary to the Judicial Conference, the "executive committee" of judges which runs the federal judiciary, and chaired by the Chief Justice.

Sugarman also wrote a letter to Senator Joseph Lieberman, one of the primary sponsors of the E-Government Act of 2002 which required the judiciary to open up access to opinions. Sugarman asked for further hearings on the pending E-Government Reauthorization Act of 2007 to consider issues related to access to court opinions.


We believe that the Administrative Office should (1) take the simple steps of extracting from the master database, the subset of documents and data representing judicial opinions; (2) assign a persistent public file name to each document, and (3) then place the files with associated metadata in an open server available to the public for bulk downloading and searching by search engines


[W]e ask that judges and clerks exercise extra care in being sure that written opinions are properly designated on the CM/ECF system. To make this task easier to busy judges and clerks, we propose a new category on the system, "written orders," to permit less substantive orders to be marked as such.

Sugarman also suggested that a natural citation for the federal court opinion files: that file name and metadata include the docket entry number along with court and docket number.

Read the Letter to the Administative Office   PDF - HTML.

Read the Letter to Senator Lieberman          PDF - HTML

Updates and Addenda:

May 11, 2008

Another source of free public access law is The Public Library of Law provided by FastCase, again without access to district and bankruptcy decisions.

The FastCase paid service does include all cases from the Federal Supplement and the Bankruptcy Reporter.

In 2007, Lexis published over 95,370 decisions from the U.S. District Courts, far exceeding the number of decisions published in the Federal Supplement.

First There Was Oregon - Now New Mexico Claims Copyright in the Law?
May 2, 2008

Tim Stanley (founder of FindLaw) recently received a cease and desist letter from the Legislative Counsel Committee of the State of Oregon ... letter from Robert Mead, Interim Director of the New Mexico Compilation Commission .... dated April 1, 2008 ... Read the entire article ....

Public Resource Scores a Hit - Federal Reporter At Your Fingertips From Public Resources via FastCase.
May 1, 2008, Revised May 3, 2008

Notwithstanding Carl Marlamud's unfortunate inclination to overstatements [all federal law does not equal the cases in the Federal Reporter - by a long shot], it is clear that Carl Malamud has made a major contribution by obtaining the Federal Reporter decisions from FastCase, making them available to all, posting them on a public web site, formatting them with the assistance of professional programmers,

See announcement dated Feburary 11, 2008.

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Comments Re: Law.Com Article by Eriq Gardner "An Operating System for Law: Online Case"- Re HyperLaw v. West Publishing, Matthew Bender, and Carl Malamud: The Text Copyright Decision
April 19, 2008, Revised May 1, 2008, Revised June 29, 2008.

An article on Law.Com of March 31, 2008 by Eriq Gardner provide some background in the history of efforts to open public access to case law, but manages to mangle the facts while providing accolades to Carl Malamud. Among the mangling and important to use was conflating the two separate opinions in the Matthew Bender v. West case. One or the Matthew Bender opinions addressed the citations of opinions and the other the enhanced or emendated text of opinions. Although the substance of Gardner's article concerning primarily the West claims to its versions of the text of opinions, Gardner seemed not to be aware of this.

Morgan Chu, counsel for Matthew Bender, was quoted in the article, conflated the two cases, and then took credit for the case his client Matthew Bender wanted to have nothing to do with, the text opinion. In fact, Reed Elsevier, which owns Lexis, opposed HyperLaw and supported West filing an amicus brief to support West. During the case, Reed Elsevier and Matthew Bender fomred a joint venture to acquire and operate Shephard's. Before the case was over, Reed Elsevier had acquired Reed Elsevier. Here is the case Gardner missed Matthew Bender v. West, 158 F. 3d 674 (2nd Cir. 1998), aff'g, No. 94 Civ. 0589, 1997 WL 266972 (S.D.N.Y. May 19, 1997), cert. denied sub. nom. West v. Hyperlaw, 526 U.S. 1154 (1999). Even, worse, Chu will not own up to the facts, and, we then discovered that his partner David Nimmer, who worked with Chu on the other part of the case for Matthew Bender, seems to have conflationitis as well. More to come on this issue.
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A simple search for a new case leads off into the twisted and entangled roots of the publishing and electronic dissemination of federal court opinions - Google AltLaw Pacer ECF FindLaw - and Docket Numbers in citations redux.[pre-released September 23, 2007, revised and edited October 12, 2007]

After reading about a recent United States Court of Appeals antitrust opinion in an on-line newsletter, I wanted to read the opinion, as well as the United States District Court opinion below, and decided to search for the opinions using public free resources on the Internet.

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New York Times Article - "A Quest to Get More Rulings Online and Free."
August 20, 2007
HyperLaw is back in the New York Times in an article "A Quest to Get More Court Rulings Online, and Free" dated August 20, 2007 by John Markoff noting HyperLaw's successful challenge to the West copyright claims in 1997 and 1998. The Times article describes an initiative by Carl Malamud to persuade West to give up its database of federal court opinions.
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Do you wish to comment - go to the HyperLaw Blog!!!

Visit the original web site established in 1995!!old site.

John B. West, Multiplicity of Court Opinions. 1909.

The definitive article on the need for public domain citations by the courts when decisions are issued. There is not much new today.


Newsletters published in July 1995 and December, 1995 concerning citation and court publication of opinions - still relevant today.

Nineteen years later - a cornerstone of copyright law as to the lack of copyrightability of non-original works.

United States District Courts opinion dissemination
Citation to unpublished opinions.
Legal Markup Standard

Google and Fair Use - the virtual card catalog.
Database protection.

Adopted by the courts of the United Kingdom - delays persist in US Courts.