TAP-Crown Jewels JURIS UPDATE

["James P. Love" <love@essential.org>]

Taxpayer Assets Project
Information Policy Note
October 6, 1993

     WEST PUBLISHING WILL REQUIRE THE DEPARTMENT OF JUSTICE (DOJ) TO
     ERASE CASELAW WEST PROVIDED FOR JURIS OVER THE PAST DECADE

     DOJ WITHDRAWS CURRENT JURIS PROCUREMENT FOR LEGAL DATA

     DOJ WILL MEET WITH DATA USERS TO DISCUSS FUTURE OF JURIS PROGRAM

INTRODUCTION
     Since our last comment on the September 30, 1993 announcement by
West publishing that it will not seek renewal of the DOJ/JURIS
contract, we have finally been able to reach DOJ officials who can
comment on the consequences of West's decision.  It now appears that
West will insist that DOJ erase from its computers all copies of
caselaw that were provided under the West/DOJ contracts over the past
decade.  Contrary to earlier comments by West to the news media, the
West action will involve much more than the company's copyrighted
headnotes.  West will require DOJ to erase copies of the text of
federal judicial decisions, even though these are public documents and
are not subject to copyright (although West does claim that it can
copyright the "arrangement" of the cases).
     DOJ has announced that it will withdraw the current JURIS
procurement, in order to consider its options.  DOJ has also agreed to
meet with users to discuss the future of the JURIS program.

WHAT IS THE JURIS PROGRAM?
     There is considerable confusion about the DOJ JURIS program. 
JURIS is an online information system that is run by DOJ on computers
and software which are owned by DOJ.  DOJ makes JURIS available to
about 15,000 federal employees, who pay a user fee of $72 per hour. 
These user fees pay for the cost of running JURIS, including data
aquisition, dissemination, administrative overhead, training and
development, plus a profit.
     JURIS was started by DOJ in the 1970s.  In the beginning, DOJ
used government employees to gather the digital copies of the legal
information in JURIS.  Caselaw, for example, was obtained from the
Airforce.  In the 1980s DOJ entered into two contracts with West
Publishing to provide certain legal information to DOJ for JURIS. 
These contracts were obtained under competitive bid, where West was
the low bidder.  DOJ lawyers who negotiated the contracts allowed West
to retain broad rights to the data it supplied DOJ.  Under the two
contracts, West "leased" the legal information to DOJ for the term of
the contract.  West obtained a  clause that limited access to the
records it provided for the JURIS database (only federal employees
could access the records), and required DOJ to erase the records at
the conclusion of the contracts.
     As a result of the changes in procedure, DOJ rapidly alienated
its control over the very records that were used by the JURIS system. 
While DOJ continued to own the computers and software for JURIS, it no
longer "owned" its own database.
     Meanwhile, as time went by, the DOJ data procurement became less
and less competitive.  Only two firms, West and Mead Data Central,
owned the historical records that were needed for the JURIS
procurement.
     In the current procurement, it appears that West was the only
active bidder who could provide the historical caselaw.  (Mead
apparently did not bid.)  When West decided to end its relationship
with the DOJ JURIS program, DOJ had to withdraw its pending
procurement.

WHAT ARE THE DOJ OPTIONS?
     If DOJ can not find a second source for the historical caselaw
for JURIS, it will have to rely upon LEXIS and WESTLAW to search these
records.  At present, the Library of Congress Fedlink program has
negotiated a price of about $125 per hour for LEXIS and WESTLAW --
nearly twice the user fees charged under JURIS.
     The government spends tens of millions of dollars every year on
legal information.  For example, in the first 9 months of fiscal year
1991, procurements under the FEDLINK program were $12.9 million for
LEXIS and $5.5 million for WESTLAW.  Since FEDLINK is only one way
that LEXIS and WESTLAW are procured, the total amount of money spent
on these two vendors was undoubtedly much higher.  In addition, DOJ
spends millions to run its in house JURIS service.
     Because the federal government is a large consumer of legal
information, it can justify investments to obtain the historical
records through new procurements.  Private contractors would likely
use optical recognition software to "scan" cases for use in JURIS. 
The cost of obtaining the historical records this way is much lower
today than it would have been a decade ago.  Ultimately, this is what
DOJ must do, if it cannot "buy" the historical records it wants from
West or Mead.  Moreover, DOJ can structure the new procurement so that
it "owns" its database free and clear.  Then, the public (including
private vendors who want to compete against West and Mead) could
obtain access to the JURIS records, either through FOIA or through a
government publishing program, involving DOJ, GPO or NTIS.
     The cost of recreating the historical records will be initially
expensive.  But the higher initial expense will be offset over time as
DOJ can avoid the high cost of obtaining the records from LEXIS or
WESTLAW.  There are problems, however.  DOJ officials say they are not
sure they have the authority for the procurement of the historical
records, if the government wants to "own" the records free and clear. 
One important problem is that JURIS is operated "off the books," as a
user fee supported service, and changes in they way the JURIS does
business raise questions regarding legislative oversight.
     West probably hopes that DOJ will have to kill JURIS, since its
most important product -- the federal caselaw -- is missing.  West
would then benefit, since its commercial WESTLAW service is much more
expensive than the fees that it received for the lease on the JURIS
records, and by killing the JURIS program, West and Mead would
strengthen their hold on the market for legal information.

WHY DID DOJ FIND ITSELF IN THIS SITUTATION?
     The fact that today DOJ finds itself at the mercy of West is
predictable, given the two contracts it had negotiated with West. 
JURIS existed before the West contract, and as a going concern, West
knew that JURIS was a threat, not only to its sales to federal
employees, but also to its sales to private law firms.  If DOJ allowed
public access to the JURIS database, West stood to face greater
competition and lower revenues.
     When DOJ allowed WEST to "own" the JURIS data, it created a
situtation where the bargaining position of the parties dramatically
changed over time.  As the Taxpayer Assets Project (TAP) and other
groups began to demand public access to JURIS, DOJ was already in a
quandry, since it could not operate JURIS without the historical
records that only West and Mead possess.

IS THE WEST WITHDRAWAL A GOOD THING?
     In our view, it was essential to get rid of West, so that DOJ can
begin to repair the damage caused by the two bad contracts.  If DOJ
had issued a third contract on the same terms as the earlier
contracts, it would only dig itself a larger hole.
     On the other hand, DOJ may find that it cannot recover from the
loss of its historical files, and JURIS may be shut down by DOJ.  If
this happens, DOJ will be likely spend even more money obtaining
access to the same records from WESTLAW and LEXIS.

WHAT CAN YOU DO?
     Our first job is to encourage DOJ to develop a strategy to obtain
the historical caselaw needed for JURIS in a manner that does not
alienate the government's ownership and control over its own database. 
Individuals who have views about this issue should write to Senators
Joe Biden and Pat Leahy, or Representative Jack Brooks.
     Please drop me a line if you are interested in attending the
meeting between data users and DOJ regarding JURIS.  We will post
updates on the JURIS situation on tap-info.

     james love | love@essential.org
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