Originally posted to TAP-INFO – An Internet newsletter no longer published.
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TAXPAYER ASSETS PROJECT – INFORMATION POLICY NOTE
Crown Jewels – Legal Information
March 23, 1995
Four Years of Struggles to Free the Law
Background Comments for
Conference on Computers, Freedom and Privacy, 1995
(CFP-95)
Panel on “Who Owns the Law”
Friday, March 31, 1995
San Francisco Airport Marriott
James Love, Director, Taxpayer Assets Project
P.O. Box 19367, Washington, DC 20036
202/387-8030; love@tap.org
The title of this panel, “Who Owns the Law,” sounds like a misprint. Who but the public, after all, could “own” the law? In fact several private concerns make claim to various parts of the law, through an array of copyright and other intellectual property assertions. Under the federal copyright law, no one can copyright the work of a federal employee, but states and local governments are not so constrained. Some states award exclusive rights to publish state statutes, and publish court decisions in copyrighted reporters. Even at the federal level there are private claims on the ownership of the law that citizens must obey.
West Publishing is the only comprehensive publisher of state or federal court opinions. While several firms publish court opinions in selected states, West is the only publisher that reports decisions from all 50 states in paper formats. West is also the only company that reports court decisions from all federal courts in paper formats. For more than a century, the West Publishing Company has acted as a quasi-official arm of the court system, and the firm has been richly rewarded for doing so.
The West paper bound volumes of court opinions are a staple in law libraries throughout the United States. But with the development of computers and computer networks, the role of West as the principle source for court information is being called into question. There is increasing interest in a public database of court opinions that would be available for free on the Internet. There is also growing activism by new firms that want to create value added information products that include court decisions.
The most important barriers to access the court opinions are copyright claims by West Publishing. West asserts a copyright to the “arrangement” of opinions that it publishes. These claims, which are controversial on both legal and empirical grounds, include such items editorial corrections, the editorial discretion of what cases to publish and the location of page breaks in the West printed volumes of opinions. Because of these copyright assertions, courts have not allowed persons to freely copy the text of judges opinions from the West paper volumes, or show the location of the West page breaks in computer databases.
Citations to court cases are typically based upon the West bound volumes of published decisions. I say typically, because rules for citations are highly decentralized, and often informal rather than formal. But as the only comprehensive publisher of federal and state judicial opinions, judges and academic journals usually expect lawyers to cite the text of court opinions according to the page in a West paper volume where the text appears. This is even true in states that have non-West reporters, when out-of-jurisdiction cases are involved, including federal cases. Therefore, more than a century of case law and academic research is based upon citations to the West page breaks.
The West copyright claims to the text of opinions and its citations are being tested in federal courts and there are many other battles over access to legal information. Here is a brief summary of some of the battles:
1. In February, 1991, the Administrative Office of the U.S. Courts proposed a public domain database of federal court opinions (a central repository) and a public domain citation system. This proposal, which was vigorously opposed by West Publishing, was first watered down and eventually defeated at a September 22-23, 1992 meeting of the federal Judicial Conference. West lobbied judges very aggressively.
2. In May, 1992, Congress held hearings on legislation that would have prevented anyone from having a copyright on statutes or citations to court cases. West vigorously opposed this proposal which was never voted upon.
3. Since 1991, the Taxpayer Assets Projected (TAP) advocated that the Department of Justice (DOJ) provide public access to the JURIS database. JURIS was created by DOJ in 1971, and since 1979 it was available throughout the government via an executive order (12146) issued by Jimmy Carter. JURIS was a second generation service, following FLITE, a legal computer database created by the Air Force in 1964. In 1973, LEXIS began to sell access to court opinions online. WESTLAW began in 1975, using technical staff who developed JURIS for DOJ, but the initial product only included West headnotes and summaries, and not the full text of opinions. In 1976, the Air Force signed a contract with West that gave West the exclusive rights to obtain the FLITE database of court opinions. In 1978, WESTLAW began providing access to the full text of court opinions. In 1982, DOJ contracted with West to provide the text of federal court opinions for JURIS. That contract was renewed n 1988. When TAP first approached DOJ about access to the JURIS database, DOJ claimed that West “owned” the text of court opinions in JURIS. In 1993, the West contract with JURIS was being renewed. TAP pushed for a provision that included public access. In October, 1993, West announced that it would end its contract, and demanded that the government return all the data that it had provided DOJ over the past decade, leaving a huge gap in case law that could not be replaced on short notice. The Department of Justice then terminated positions for the 29 JURIS employees, and shut down the JURIS program on December 31, 1993. This also ended data collections for other sections of JURIS which dealt with administrative law and other items.
5. In January, 1994, Tax Analysts, a publisher of legal information about taxes, sued the Department of Justice for access to the JURIS database under the FOIA. Tax Analysts says that the JURIS contract did not prohibit disclosure of the court opinions under FOIA. West has sought to supplement the “four corners of the contract” with affidavits from DOJ officials saying what the contract is supposed to say. If Tax Analysts is successful, a large portion of the historical records for federal case law will enter the public domain.
6. In February, 1994, two firms sued West in the Southern District of New York, challenging the West copyright assertions. The firms were Matthew Bender, a Times-Mirror company, and Hyperlaw, a small CD-ROM publisher from New York City. (CIV. No. 94-0589). The case is being heard by Judge Loretta Preska. Over the past several months Judge Preska has sealed most of the records in the case which show the degree to which the Judges determine which cases West includes in its paper bound volumes, and the degree to which Judges approve editorial changes and corrections to published decisions. These two areas of cooperation between the judiciary and West are key issues in both the copyright suit and the broader public debate of the amount of “value” that is added by West. Ironically, this court information is also not public.
7. Beginning in early 1994, TAP pushed to have DOJ use its new procurement for computer assisted legal research (CALR) to create a public database of opinions and a public domain citation. One firm, Tax Analysts, told Justice that it could create a database of all new federal opinions for about $.5 million per year, and that it would cost about $6 million to replace the historical case law. Another firm told Justice that it could create a public domain database of circuit court opinions for $36,000 per year. (These opinions are already disseminated electronically without an official citation. One CD-ROM vendor, Hyperlaw, now charges $195 for 20,000+ circuit court opinions sans citations, covering four years.).
Federal agencies spend tens of millions buying case law from very expensive LEXIS and WESTLAW contracts (the only two that can use the West page numbers in an online database of court opinions). Law book purchases are also expensive — DOJ reported spending more than $8 million one year. Much of this information could be provided to the government for a tiny fraction of the price on CD-ROM and online if the database itself was in the public domain.
When the DOJ procurement was published it was extremely uncompetitive. No firm could bid to provide CALR services to DOJ unless they could provide roughly two hundred years of federal case law, plus a comprehensive collection of state case law, all with “BLUE BOOK” approved citations. Only LEXIS and WESTLAW qualified to bid. Moreover, the contract allowed the bidder to bundle other value added services into a flat rate contract. This had the effect of giving LEXIS or WESTLAW an opportunity to choose partners for other value added products, which would be available to DOJ lawyers at a zero marginal cost, making it next to impossible for other publishers to sell services to DOJ unless they are part of a WESTLAW or LEXIS partnership.
8. In August, 1994, DOJ began an antitrust investigation of West Publishing. In September the probe was broadened to include the entire CALR industry. The probe still continues.
9. A TAP study in August, 1994, showed that West, through its company PAC and contributions from associated lawyers, lobbyists and family members, contributed more than $738,000 to members of Congress and the Democratic National Committee over a five year period.
10. In September, 1994, the Attorney General announced that DOJ would consider the creation of a public domain database of court opinions and a public domain vendor neutral citation system. West told its 6,000 employees that they would lose their jobs if a public database was created, and asked its employees and retirees to write letters to Attorney General Janet Reno and members of Congress, giving copies to their supervisors. Some employees protested, but West was able to generate more than 20,000 letters, many of them written in the company cafeteria using form letters. The Minnesota Congressional delegation also weighed in for West, as did others who received campaign funds or fund raising assistance from West President Vance Opperman. By October 1994, DOJ had more or less abandoned plans to create a public database of court decisions.
11. In October, 1994, TAP began meetings with legal publishers to see if there might be a consensus on a method of citation. Using an email list and two meetings in Washington (both attended by lawyers for West Publishing), several publishers agreed upon a system that uses paragraph numbers as the pin point citation, rather than the page breaks in the West paper volumes. The paragraph numbering system was endorsed because it is technology neutral, and if issued as part of an opinion, would be available to the public and all publishers the moment the opinion is made public.
West tried to disrupt a meeting on October 19, 1994 at the TAP offices, by inviting dozens of persons to attend at West’s expense and object to the meeting and the agenda. West also took out four large ads in Washington Post to complain about the meeting. The West activities drew attention to the effort, however, and gave this somewhat obscure issue much more visibility.
12. The American Association of Law Librarians (AALL) has been working on the public domain citation issue for several years and have formed a task force to recommend a uniform public domain vendor neutral system of citation. The AALL task force, which includes representatives from LEXIS and WEST, is expected to issue a report on the topic soon.
13. Several states have recently moved ahead with plans to develop pubic domain citation systems, including Louisiana, Colorado, Wisconsin and Florida. Last year British Columbia and the U.S. Military Court of Appeals began using paragraph numbering.
14. In January, 1995, a number of small publishers and software companies created the American Association of Legal Publishers, to push for a public domain citation system.
15. On Feb 6, 1995, Rep. Clinger (R-PA) introduced a bill (HR 830) with a provision inserted for West Publishing (Sec. 3518(f)) that would have eliminated the Tax Analysts FOIA law suit, vastly enhanced West’s claims on ownership of published judicial opinions, and made it illegal for the government to create a public database of opinions that used the West page numbers, without approval from West. The “West Provision,” as it became known, would have also done much more. For example, it would have eliminated public FOIA rights to all government records created by contractors. The bill was set for hearing on Feb. 7, subcommittee markup on Feb. 8th, and full committee mark-up at 9 am, Feb. 10. Within 72 hours the Internet community learned about bill and flooded Congress with faxes and telephone calls. The provision was removed from bill after a long and contentious debate before 50 members of the House Committee on Reform and Oversight. The Washington trade press, Business Week and others wrote stories about the provisions’s demise, which was widely seen as key demonstration of the growing importance of the Internet.
16. On March, 5, 1995, the Minneapolis Star Tribune (MST) published a voluminous article detailing West’s close ties with judges and lavish trips paid for by West for judges, including seven members of the Supreme Court. The trips were to resorts and expensive hotels in places such as the Virgin Islands, the Bahamas, Hawaii, Florida, California and New York City — justices were often involved in the selection of the location. The only judge who reported the value of trips said West paid $7,700 for a three day trip to Los Angeles. The article focused on Devitt award, which includes a $15,000 cash gift to at least one federal judge every year. The Award is provided by West Publishing.
On March, 5, 1995, the Minneapolis Star Tribune (MST) published a voluminous article detailing West’s close ties with judges and lavish trips paid for by West for judges, including seven members of the Supreme Court. The trips were to resorts and expensive hotels in places such as the Virgin Islands, the Bahamas, Hawaii, Florida, California and New York City — justices were often involved in the selection of the location. The only judge who reported the value of trips said West paid $7,700 for a three day trip to Los Angeles. The article focused on Devitt award, which includes a $15,000 cash gift to at least one federal judge every year. The Award is provided by West Publishing.
TAP had earlier, Nov. 1993, raised questions about Devitt Award, but we had focused on the cash prize rather than expensive trips to resorts for persons who chose the prize “winner.” According to the MST, while accepting trips, the Justices refused to hear appeals from 5 cases involving West, including one case regarding West’s claims to copyright of the Texas Statutes and another involving West’s claims that it can copyright the page breaks in its bound volumes.
17. West is also a funder of dozens of events which raise ethical questions. For example, in February 1995, West solicited nominations for a $5,000 prize to law librarians (given to three each year), funded a conference at Stanford for more than 100 students working at prestigious law reviews (including the students who will write this year’s revision of the Blue Book on judicial citations), and provided 75 members of the legal press and local Bar associations with all expense paid trips to Washington, DC for meetings on covering the judiciary.
What is this battle about?
i. Can West Publishing retain ownership over the citations used for a century of case law, as well as the text of opinions that it has published? Or, will this end up on the Internet, available for free from some law school’s World Wide Web site?
ii Can the influence gained by the employment of several public relations firms and lobbyists, various junkets and awards, and hundreds of thousands of dollars in campaign contributions be offset by an opposition that mainly operates by posting messages to Internet discussions lists?
To follow this and other battles over public access to government information, subscribe to tap-info, a free internet newsletter, available from listproc@tap.org.
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