158 F.3d 693 (2d Cir.1998). But the districtcourt denied summary judgment allowingHyperLaw to copy redacted versions of West's case reports, and conducted a benchtrial on this issue.The principal trial witness was DonnaBergsgaard, the manager of West'smanuscript department. She specified four kinds of alterations made by West to theopinions that it publishes in the
andthat HyperLaw intends to copy: (i) thearrangement of prefatory information, suchas parties, court, and date of decision; (ii)the selection and arrangement of theattorney information; (iii) the arrangementof information relating to subsequent procedural developments; and (iv) theselection of parallel and alternative citations.Following the bench trial, the district courtruled that West's revisions to judicialopinions were merely trivial variations fromthe public domain works, and that West'scase reports were therefore notcopyrightable as derivative works.
*4. In reaching this conclusion, the districtcourt reviewed each type of alteration andfound that “West does not have a protectibleinterest in any of the portions of the opinionsthat HyperLaw copies or intends to copy” because West's alterations lack even minimalcreativity.
As a threshold matter, West argues that the judgment should be vacated and the actiondismissed as moot because HyperLaw failedto demonstrate through admissible evidencea sufficiently real intent to copy West's casereports in quantities beyond what Westconceded (immediately prior to trial) would be permissible under the fair use doctrine,
one to two percent of its publishedreports of Supreme Court and court of appeals cases.Early in the litigation, the district court helda justiciability hearing and concluded thatHyperLaw had the ability and intent to copycertain elements of West's case reports andthat if HyperLaw did so, it faced areasonable apprehension of suit. But adispute remained as to the scope of HyperLaw's intended copying. Prior to trial,West argued that HyperLaw intended nocopying of West's case reports other than thefew recent court decisions that HyperLawhad not obtained from the courts, and West preemptively conceded that such copyingwas permitted under the fair use doctrine.HyperLaw contested West's characterizationof the scope of its intended copying, and pointed to an affidavit (submitted earlier inthe litigation) in which Alan Sugarman,HyperLaw's president, expressedHyperLaw's intent to copy opinions fromearlier years cited in opinions included ontheir CD-ROM discs.Faced with West's last-minute concession,the district court reserved decision on West'smotion to dismiss for mootness and proceeded with the bench trial, at whichHyperLaw would have the opportunity tooffer testimony on the percentage of Westcase reports it
intended to copy. After the close of evidence, West moved todismiss for mootness on the ground thatHyperLaw neglected to adduce suchevidence. The district court, however, permitted HyperLaw to remedy its omission by offering Sugarman's affidavit on thatsubject for the truth of the matters statedtherein, subject to West's opportunity tocross-examine Sugarman. During this cross-examination, Sugarman testified thatHyperLaw intended to copy most older