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Public Access Alert - Federal Caselaw
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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
CROWN JEWELS CAMPAIGN - Juris, Legal Information
July 19, 1994
- Attorney General Janet Reno asked to request Anti-Trust
Division review of new procurement for Computer Assisted
Legal Research (CALR) Procurement
- Department of Justice (DOJ) asked to use procurement process
to create a public database of federal judicial opinions,
and break West monopoly on copyright of page numbers of
published federal judicial opinions.
- Issue is key battle in fight over public access to federal
legal information. Citizens are urged to fax comments to
Attorney General Janet Reno in support of a decision to use
the procurement to put the database of federal caselaw into
the public domain. COMMENTS SENT TO JURIS@TAP.ORG WILL BE
COPIED AND MAILED TO THE DEPARTMENT OF JUSTICE.
Today the following letter was sent to Attorney General Janet
Reno and Stephen Colgate, the Assistant Attorney General for
Administration. The letter is signed by TAP and the Government
Purchasing Project, a citizen group which encourages government
agencies to use their procurement power to facilitate the
development of better products and markets.
The purpose of the letter is to continue to press the Department
of Justice (DOJ) to use its procurement for new computer assisted
legal information to solve the core problems which prevent
federal legal information from being more widely available.
DOJ has told people that they will issue a new solicitation for
computer assisted legal research (CALR) this month. This new
solicitation is extremely important. We urge persons to fax or
email a message to Attorney General Janet Reno (fax: 202/514-4371
or 202/514-4372) or Stephen Colgate (202/514-1778), urging DOJ to
accomplish the following objectives in its procurement:
- create a national non-proprietary system of legal citations,
breaking the West Publishing monopoly which stems from its
copyright of the page numbers of published legal decisions.
(See "who owns the law," in the may issue of Wired, or JURIS
posts on tap archives at cpsr.org for background).
- Require the winning bidder to place a copy of the database
into the public domain. At present, only two high priced
services (LEXIS and WESTLAW) have databases of federal
caselaw. (DOJ has a database called JURIS, but West claims
that it "owns" much of the database, under two Reagan era
contracts). The federal government now spends more than $50
million per year on LEXIS and WESTLAW. It would cost about
$6 million up front to replace missing historical records
(which West claims to own), plus a relatively modest
investment (less than $.5 million) per year to maintain data
collections, if the government decided to create an
electronic copy of federal caselaw. This would dramatically
increase competition for CALR CD-ROM products and online
services, lowering the government's costs, and providing the
public with an enormous flood of innovative (including
expert systems) and lower priced products and services.
Those who want to send comments by email may send a message to
juris@tap.org, which will be copied and forward to the Department
of Justice. Thanks. jamie love (love@tap.org)
The letter follows:
----------------------------------
July 19, 1994
Janet Reno
Attorney General
Department of Justice
Washington, DC 20530
by fax: 202/514-4371 or 202/514-4372
Stephen Colgate
Assistant Attorney General for Administration
Department of Justice
Washington, DC 20530
by fax: 202/514-1778
Re: DOJ procurement of computer assisted legal research
Dear Honorable Janet Reno and Mr. Stephen Colgate:
In a letter dated July 11, 1994 we wrote Mr. Colgate and Ms. Anne
Bingaman about our concerns regarding a Department of Justice
(DOJ) solicitation for computer assisted legal research (CALR).
We have been told that the solicitation will be issued this
month. We are concerned about possible anticompetitive aspects
of the next DOJ CALR procurement.
BACKGROUND
As you know, from 1971 until January of 1994 the federal
government ran its own CALR program, called JURIS. This program
was terminated abruptly when West Publishing (West), a company
which was paid by DOJ to provide caselaw for JURIS for more than
a decade, refused to continue its relationship with DOJ, over a
dispute regarding public access to the caselaw section of the
JURIS database. Since the Reagan Administration gave West a
contract which allowed that firm to claim ownership over much of
the caselaw in the JURIS database, DOJ was faced with a difficult
task -- find a new source for more than 10 years of data from the
federal courts within 90 days. When West pulled out of the
contract there were only three electronic copies of the database
of federal caselaw in existence - WESTLAW, MDC's LEXIS and JURIS.
West claimed that it "owned" the case law in JURIS, and there was
considerable speculation that litigation between Westlaw and MDC
may have prohibited MDC from bidding on the JURIS contract.
While West had known about pressures for public access to JURIS
since 1991, and began negotiations on a new contract in late
1992, the company waited until October 1993 to announce that it
would terminate its JURIS contract. This was significant,
because by October 1993 the DOJ appropriation had already cleared
key congressional committees, and it was impossible to seek
funding to replace the caselaw which would be removed from JURIS.
As a result, DOJ was forced to lay off all JURIS employees and
end all data collections for the nation's most important database
of legal information.
Competition in the CALR market is severely limited by two
factors. First, as noted, West has managed to gain ownership
over the government's own database of federal caselaw, so new
entrants must spend millions of dollars to re-enter more than a
decade of historical judicial decisions. Second, West Publishing
claims that it owns a copyright on the page numbers of its
published judicial opinions, giving the firm a monopoly over an
important and valuable citation system widely used by federal
judges.
DOJ'S NEW CALR PROCUREMENT
DOJ will soon offer a new "competitive" procurement for CALR
services. As we indicated to Mr. Colgate on July 11, this
procurement will be important, and people are waiting to see how
DOJ responds to West's destruction of JURIS. Will the new
procurement be one that break's the West-LEXIS duopoly on online
CALR? Or will the new procurement be a reward of sorts to West,
for its destruction of JURIS?
Put another way, will the new procurement be truly competitive,
so that many firms, large and small, can bid on the contract, or
will it be written so that only West and LEXIS can bid?
THE CASELAW DATABASE
As noted, only two firms, West Publishing (West) and Mead Data
Central (MDC), have ownership of the historical records of
federal judicial decision in electronic formats. Unless the
procurement requires the contractor to put the database into the
public domain, it will be very difficult for any new firm to
enter this market. Several firms have already asked DOJ to
require in the procurement that the database be placed into the
public domain.
THE PAGE NUMBERS
A single firm, West, claims, persuant to the copyright laws, that
it is the sole owner of the page numbers of federal judicial
decisions it publishes in paper formats. And since West is the
official or only (paper) publisher of many court decision, this
gives West a monopoly on a very important element of the official
government citation system for the law. We believe that this
monopoly is unlawful, unwise, and anticompetitive, and that the
public interest is clearly served by the existence of a non-
proprietary system of citation, including interior pagination,
for all federal (and state) judicial decisions.
THE ANTI-TRUST DIVISION
A copy of our July 11th letter was sent to Anne Bingaman,
Assistant Attorney General for Antitrust. According to Anne
Jones, who works for Assistant Attorney General Bingaman, the
Antitrust Division will provide an opinion letter on the issue of
the antitrust ramifications of the current solicitation, if a
request is forthcoming. We urge you to request such an opinion
letter immediately, so that the response will be available before
the new solicitation is made public.
As noted, it is our position that a solicitation that allows the
bidder to retain ownership over the citation system and the
database will be profoundly anticompetitive, and only benefit two
firms, West and MDC, at the expense of their competitors, DOJ,
other government agencies and the public.
We urge you to request Assistant Attorney General Bingaman to
address the following issues:
CITATIONS
1. Is the monopoly ownership of the page numbers in the
official legal citation a matter which has created barriers
to entry in the market for CALR?
2. Does the DOJ procurement create an opportunity to establish
a non-proprietary system of citations and page numbers for
federal caselaw?
3. Would a non-proprietary system of citation stimulate entry
by new firms and increase competition, leading to lower
prices and better products?
OWNERSHIP OF DATABASE
4. Do the high sunk costs of data entry for the historical
copies of federal judicial decisions create entry barriers
for new firms in the market for CALR?
5. Only two firms have ownership of the database of federal
judicial opinions. Does DOJ consider this situation
sufficient to guarantee that taxpayers and consumers are not
paying monopoly prices for CALR?
6. Would the CALR market be more competitive if bidders could
obtain from the government a copy of the database?
7. If the DOJ solicitation allows the bidding firm to retain
ownership over the database of caselaw, will this enhance or
reduce competition in this or future solicitations?
Benefits of Greater Competition
8. What would be the benefits to DOJ, other government agencies
and the public if there were greater competition in the
market for CALR?
DOJ PROCUREMENT DECISIONS
9. Did the 1983 and 1988 decisions by DOJ to give West
ownership over the federal caselaw in JURIS enhance West's
monopoly power?
10. If DOJ, in the 1994 procurement, allows the vendor to retain
ownership of the caselaw and the citation system, will this
further enhance West's monopoly power?
Given the significant and continuing technological changes in the
computer and telecommunications fields, we have, for the first
time, the opportunity for all citizens to have low cost access to
legal information through libraries, schools, homes and work
places, giving the public greater knowledge of their rights and
obligations under the law. This promise, however, is held
hostage to a technologically outdated duopoly over government
judicial decisions.
It is simply outrageous that private companies can exercise
ownership of the written law. It is very important that the
Department of Justice facilitate changes which benefit the
public, by enhancing competition. DOJ procurement decisions
should facilitate the development of the best new CALR products,
and that will not happen if the solicitation is written solely to
perpetrate the status quo, thus permitting West and MDC to
continue their tight control over public access to legal
information.
Once again we are repeating our request for a timely meeting with
Mr. Colgate and other DOJ officials responsible for this
solicitation for CALR.
Sincerely yours,
James Love, Taxpayer Assets Project, jamie@tap.org
Eleanor Lewis, Government Purchasing Project, eleanor@csrl.org
cc: Anne Bingaman, Steven Kelman, Linda Gustitus
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