Four Years of Struggles to Free the Law (CFP-95 presentation)

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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
in 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 volumous 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 lobbists, 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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