Star Pagination of Legal Materials

Detail-obsessive lawyers like to cite to specific pages in legal materials that support their factual or legal assertions. Sometimes court rules require them to do so.

When the legal material appears in multiple versions, there is a similar desire to cite to the pages in the original version. As a result, publishers of the subsequent versions developed a practice of including the page numbers in the original version in addition to the page numbers of the subsequent versions. This practice became known as “star pagination.”

Blackstone's Commentaries

This practice is believed first to have been used for the later editions of Sir. William Blackstone’s treatise, Commentaries on the Laws of England. It was first published in four volumes in 1765-1769, was long regarded as the leading work on the development of English law and played an important role in the development of the American legal system.[1]

West's National Reporter System

In the U.S.’s pre-computer days, our court decisions were printed in books, the most popular of which for lawyers were published by West Publishing Company (West) of St. Paul, Minnesota.[2]  These books were known as the National Reporter System, and the published court opinions also included editorial enhancements by West that summarized and classified key points on law in those opinions. Over time, these reporters became the de facto (and sometimes de jure) official sources for U.S. judicial opinions.[3]

As a result, when computerized legal databases and services became available, there was a desire, if not a market need, for the providers of those services to have star pagination of judicial opinions in their databases to the previous reports of those decisions in the National Reporter System.

One of the first computerized legal research services was LEXIS in 1973 from Mead Data Central, Inc. (MDC) of Dayton, Ohio. At first it only had materials of two states (Ohio and New York) online, but by 1980 it had materials from all the states and federal government.[4]

In June 1985 MDC announced that it was adding star pagination to the LEXIS service. This new feature would consist of “the addition of the official page cites to the full text of online case law material.” This would eliminate the physical necessity of referring to the volumes of the National Reporter System publication in which the reports appeared.[5]

In response, West sued MDC for copyright infringement in Minnesota’s federal court.[6] MDC retained Faegre & Benson to defend the case with the assistance of MDC’s Wall Street lawyers (Sullivan & Cromwell), and I was a member of the Faegre team for the case.

The initial skirmish of this war between the two major competitors in the then new field of computerized legal research was West’s application for a preliminary injunction to ban LEXIS’ star pagination to West publications while the litigation proceeded to trial. I argued this motion for MDC. Unfortunately the court granted the preliminary injunction. The court by Judge James Rosenbaum held that the page numbers and arrangement of cases were within the scope of protection of West’s copyrights, that the proposed star pagination by MDC infringed those copyrights and went beyond fair use and that a preliminary injunction was warranted based upon likelihood of success on the merits, irreparable harm, balance of harms and the public interest.[7]

MDC exercised its right to an immediate appeal of the granting of the preliminary injunction to the U.S. Court of Appeals for the Eighth Circuit. This time, a Sullivan & Cromwell partner argued the case for MDC. Unfortunately the result was the same. The Eighth Circuit, 2 to 1, affirmed the preliminary injunction.[8] The U.S. Supreme Court thereafter denied permission to bring the issues before that Court.[9]

Later, without Faegre’s participation and according to press reports, MDC and West entered into a settlement agreement that ended the litigation and that granted MDC a license to include star pagination in LEXIS along with West’s corrections to judicial opinions for an annual licensing fee of $50,000.[10]

[1] Wikipedia, William Blackstone,; Wikipedia, Commentaries on the Laws of England,

[2]  In 1996 West was acquired by The Thomson Corporation (n/k/a Thomson Reuters). (Thompson Reuters, Company History,

[3]  Id.

[4]  Wikipedia, LEXISNEXIS, West’s competitive computerized legal research service, WESTLAW, was introduced in 1975. (Thompson Reuters, Company History,

[5]  West Publishing Co.v. Mead Data Central, Inc., 616 F. Supp. 1571, 1575 (D. Minn. 1985).

[6]  See Post: Minnesota’s Federal Court (June 28, 2011).

[7]  616 F. Supp. 1571.

[8]  West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir. 1986).

[9]  Mead Data Central, Inc. v. West Publishing Co., 479 U.S. 1070 (1987).

Ted Turner’s Superstation in the Crosshairs

Ted Turner

In 1969 Ted Turner, the now famous media mogul, bought a defunct Atlanta UHF (Ultra High Frequency) television station and put it back on the air as WTCG. As an over-the-air station, it also was microwave-linked to many cable companies in the Southeastern U.S. In December 1976, however, Turner through his company (Turner Broadcasting System, Inc.) decided to offer his station nationwide via satellite to all cable companies. By 1978 it was on cable systems in all 50 states and became known as a “superstation.”[1]

The company that carried the station’s signal to the satellite was Southern Satellite Systems, Inc.  under a license from the Federal Communications Commission (FCC). Initially Southern Satellite received the signal over the air by a UHF receiving antenna and then retransmitted it to a satellite transponder leased from RCA. The satellite transponder in turn relayed the signal down to cable systems’ receiving antennae on earth, and those systems retransmitted the signal by wire to cable customers.

In March 1979, pursuant to FCC permission, Southern Satellite began to receive the WTBS signal by direct microwave connection, instead of off the air except when the former was not operating. Under this approach, WTBS was able to send local commercials over the air in Atlanta and national commercials via the microwave connection to Southern Satellite.

WTBS’ programming included old movies like the classic “Casablanca” with Humphrey Bogart and Ingrid Bergman and old syndicated television programs like “The Bob Newhart Show” and “I Dream of Jennie,” under licensing agreements, exclusive to the Atlanta area, with the owners of the copyrights.

This “superstation” operation was challenged by Hubbard Broadcasting, Inc., a Minnesota corporation headquartered in Minneapolis. It owned television broadcast stations in Minneapolis/St. Paul, Tampa/St. Petersburg, Florida and Albuquerque, New Mexico that had exclusive copyright licenses for “Casablanca,” “The Bob Newhart Show” and “I Dream of Jennie.” All three of these Hubbard stations were in areas reached by the satellite-carried signal of WTBS.

The case, which was filed in Minnesota’s federal court,[2] alleged that Southern Satellite and Turner Broadcasting had violated the copyrights on these programs that had been licensed to Hubbard. The key issue for these claims was whether Southern Satellite qualified for the common carrier exemption in section 111 of the Copyright Act of 1976. This exemption existed for carriers that acted merely as a conduit between the distant broadcast station and the interested cable systems. I served as the principal lawyer for Southern Satellite in this case.

The Minnesota district court eventually concluded that Southern Satellite did qualify for this exemption and, therefore, granted its motion for summary judgment without a trial. The appellate court affirmed this decision.[3]

During the pre-trial discovery phase of the case, Hubbard’s attorneys took the deposition of Ted Turner in Atlanta. This was during the 1982 NFL players’ strike when Turner Broadcasting joined others in arranging games by substitute players. These substitute games were not well attended or watched on tv on the first weekend, and Turner was busy at his company making arrangements for the second weekend of such games.[4] At his request because of the press of business, his deposition was held at his company’s headquarters.

His regular outside counsel in Atlanta told me before the deposition that Turner was a tobacco chewer, and some of his depositions in other cases were shorter than anticipated because the female lawyers asking the questions were grossed out by his tobacco chewing and spitting his expectorate into a paper cup during the deposition. (This, however, was not a problem for Hubbard’s attorney.)

Ted Turner sailing

After the deposition, I joined Turner and his lawyer in Ted’s office to review the just completed deposition. I noticed the many sailing trophies in the room. (In 1977 he was the captain of the yacht that won the America’s Cup, was Yachtsman of the Year four times and recently was elected to the National Sailing Hall of Fame.[5])

This obviously was a very important case for both sides and was vigorously contested at the trial court, court of appeals and Supreme Court levels. Throughout it all, however, I had a thoroughly professional relationship with Hubbard’s attorneys, Sidney Barrows, Byron Starns and Patricia Schaffer of the Minneapolis firm of Leonard Street and Deinard. As noted elsewhere, unfortunately this was not always true in my career of lawyering.[6]

I, therefore, came to believe that is was important for attorneys publicly to acknowledge when lawyers live up to the best of the profession. Accordingly at the conclusion of this case’s hearing on cross motions for summary judgment at the district court, I told the court, “I would like to express my appreciation to Sidney Barrows and to Byron Starns and their law firm as well as John McDonough [Hubbard’s in-house lawyer]. This has been a lawsuit in which the adversaries have dealt very harshly with one another in terms of the legal issues, but in terms of professional relationships it has been great. I appreciate that.” Mr. Barrows responded, “It is in line with what Your Honor said in another argument about our being a noble profession.” The Judge said, “I sense that too and I appreciate it.”[7]

[1] Wikipedia, TBS (TV channel),; Wikipedia, Ted Turner,; Ted Turner Enterprises, In 1979 Turner renamed the station “WTBS” and branded it “Super Station WTBS,” and in 1981 he developed an electronic system to feed local ads over-the-air in Atlanta and national ads via satellite. There were other subsequent name changes. In 1987 it became “Super Station TBS;” in 1989, “TBS Superstation;” and in 1990, just “TBS.”

[2] Post: Minnesota’s Federal Court (June 28, 2011).

[3] Hubbard Broadcasting, Inc. v. Southern Satellite Systems, Inc., 593 F. Supp. 808 (D. Minn. 2004), aff’d, 777 F.2d 393 (8th Cir. 1985), cert. denied, 107 S. Ct. 643 (1986), reh’g denied, 107 S. Ct. 964 (1987).

[4]  Farnsworth, NFL crossed the line on Replacement Sunday, Seattle Post-Intelligencer (Oct. 2, 1982),

[5] ajc, Turner in sailing hall (Aug. 2, 2011),

[6] Post: Ruminations on Lawyering (April 20, 2011).

[7] Transcript of Hearing, Hubbard Broadcasting, Inc. v. Southern Satellite Systems, Inc., No. 3-81-Civil-330 (D. Minn. June 21, 1984.)