Two Fat Ladies Go Bumpety Bump – Above The Law Piece Details Lexis West Rivalry

We all know the story but still worth recording every re-tel;ling of this classic tale !

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On Remand: Lexis Drives West, Sues Toyota

Years before Philadelphia’s National Constitution Center built the forty-foot high “Tower of Law” (or, as Stephen Colbert called it, “the building blocks of boring”) out of unused legal reporters, Lexis started the books’ march to obsolescence when it debuted on April 2, 1973. “Lexis,” a term the company’s president coined by combining the Latin word for law plus the letters “IS” for information systems, was the first widely available commercial electronic database for legal research. When it launched forty years ago, Lexis contained only decisions from Ohio and New York. Today, it provides access to nearly 5 billion documents, including cases from all state and federal courts, as well as notes written by law students that are still awaiting their first citation reader. This week, On Remand looks back at the history of Lexis, its rivalry with Westlaw, and its dispute with the maker of a car popular with attorneys . . .

H. Donald Wilson, a Columbia Law graduate, led the development of the Lexis database for Mead Data Central, Lexis’s first owner. After advising Mead Data engineers on the technical aspects of Lexis — to be useful the database needed to respond to users’ requests to locate particular text in an opinion — Wilson turned to an arguably bigger problem: convincing lawyers to use it. In the 1970s, many lawyers refused to use Lexis because they considered computer work a secretarial task. So, Wilson marketed to law students, giving them free or low-cost access to Lexis, and hooking them on the service that he hoped they would pay for as practicing lawyers. Wilson also persuaded the Supreme Court to participate in a challenge: their clerks versus Lexis. Like Deep Blue and Watson decades later, the computer overlord won, finding more relevant cases than the clerks.

With its early start in computerized legal research, Lexis controlled the market for a time. By the mid-80s, however, Lexis’s rival West Publishing and its computerized database Westlaw were encroaching. Although relatively new to computerized research in the mid-80s, West Publishing had an impeccable pedigree. For over 100 years, West had published state and federal court opinions in its various “Reporter” volumes. In nearly every jurisdiction, West’s books were the official volumes, and many courts’ rules required citing to the West-published version of opinions. At the time, before the existence of PACER — the federal courts’ database for filings and opinions — judges and clerks sent opinions by mail to West’s headquarters in St. Paul, Minnesota, sometimes receiving a free set of West’s Reporter volumes engraved with their name in thanks.

Despite Lexis’s earlier start in computerized research, West was determined to keep its place in the legal research market. As part of its strategy, West turned to copyright law.  Although West had long allowed Lexis to provide the corresponding West page number for an opinion’s first page, when Lexis announced in 1985 that it would provide a corresponding West page cite for every page, West sued. The Lexis feature, called “star pagination,” was critical to competing against West because most courts required citations to West’s page numbers in briefs.

Although copyright law had not protected judicial opinions since the Supreme Court’s 1834 Wheaton v. Peters decision, “original” arrangements of opinions were eligible for copyright protection. The standard was low: “almost any ingenuity in selection, combination or expression, no matter how crude, humble or obvious . . . will be sufficient.” Accordingly, West emphasized its original contributions to opinions: verifying their case cites, organizing cases into reporter volumes, and writing headnotes. Determined to best West, Lexis, whose legal team included legendary First Amendment lawyer Floyd Abrams, zeroed in on a compelling sound bite: West wanted to copyright mere page numbers. The Eighth Circuit summarized the issue as follows:

In the end, [Lexis’s] position must stand or fall on its insistence that all West seeks to protect is numbers on pages. If this is a correct characterization, [Lexis] wins: two always comes after one, and no one can copyright the mere sequence of Arabic numbers.
But it wasn’t just about page numbers, according to the Eighth Circuit. Allowing Lexis to implement star pagination would eliminate the need for West’s books when West had “spent so much labor and industry” in compiling them. Accordingly, the Eighth Circuit sided with West, upholding the lower court’s preliminary injunction. The next year, West and Lexis settled and Lexis emerged with a license (of undisclosed cost) to use star pagination.

A decade later, West, which had just been acquired by The Thomson Corporation for $3.4 billion, was challenged by a new set of competitors. Matthew Bender & Co. and Hyperlaw, Inc., asked the court to declare that “star pagination” was not protected by copyright. West lost below and its lawyers, including Arthur R. Miller, appealed to the Second Circuit in the spring of 1998. By then, computerized legal research was widely used and the Second Circuit quickly recognized that a researcher’s goals, not the publisher’s sequencing, provided the best order in which to review cases. Citing West’s own admission that page numbers resulted from an automatic computer program, not originality, the court refused to extend copyright protection to them.

In 1987, the same year Lexis was defending its use of star pagination in a copyright case, it went on the offensive in a trademark case involving Toyota’s new luxury vehicle called “Lexus.”  After all, Lexus’s target market was “well-educated professional consumers with annual incomes in excess of $50,000,” a demographic that also used Lexis’s database. Ultimately, Lexis lost the case. Although it showed that 76% of attorneys associated “Lexis” with its databases, only 1% of the general adult population associated “Lexis” with the legal database. The court found that there was little chance of consumers confusing a legal compendium and a luxury car. Even though it lost the case, Lexis was a good sport.  In 2002 Lexis and Lexus joined together for the “Win a Lexus on Lexis!” promotion.

Today, Lexis and Westlaw continue their rivalry, but mostly outside of the courtroom.  They compete to win the loyalty of law students by lavishing them with points for using their services.  As ATL readers know, law students can go insane over these points.  And rightly so.  After spending six figures on tuition, a free iPod might be all they have to show for their degree.

April 2, 1973: Lexis Launches Computerized Legal Searching [Wired]
Lawsuits Over Law Research [New York Times]
Westlaw and Lexis Near Truce [New York Times]
West Publishing Loses A Decision on Copyright [New York Times]