[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
TAP responds to July 28 West letter
Distributed to TAP-INFO, a free Internet Distribution List
(subscription requests to listproc@essential.org)
TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
CROWN JEWELS CAMPAIGN - Juris, Legal Information
August 10, 1994
TAP RESPONDS TO JULY 28 WEST LETTER ON DEPARTMENT OF JUSTICE
PROCUREMENT.
West Publishing Company recently circulated a letter on the
Internet expressing the company's opposition to a government
sponsored central repository for the electronic copies of federal
judicial opinions, and commenting on the company's control over
federal case law and citations. The letter, which was dated July
28, and was signed by two lobbyists, Gerry Sikorski
(202/789-3970), a former congressman from Minnesota, and Jonathan
Cuneo (202/789-3960). The Sikorski/Cuneo letter raised a number
of concerns by West regarding the dangers of having the
government publish its decisions in electronic format, such as
their concerns that Congress would not appropriate funds for the
dissemination of controversial decisions. Sikorski/Cuneo also
made several statements regarding West's control (or lack of
control) over the body of federal case law and citations.
[The West letter is not reprinted here, but copies can
be obtained by calling Gerry Sikorski (202/789-3970),
or by sending a note to jamie@tap.org].
The attached letter is the TAP response to the July 28 West
letter. We do not comment on West's dire predictions of the
impact of our "campaign to nationalize legal information," since
the idea of nationalizing something as public as the law seems
baffling to us. However, West makes two important points
regarding the company's control over federal case law and
citations which deserve a response. Our August 10, 1994 letter
follows.
jamie love 202/387-8030; internet: jamie@tap.org
---------------------------
August 10, 1994
Honorable Janet Reno
Attorney General
U.S. Department of Justice
Washington, DC 20530
by fax: 202/514-4371 or 4372
RE: West Publishing copyright and control of federal judicial
opinions and citations
Dear Attorney General Reno:
A July 28, 1994 letter to you from West Publishing lobbyists
Gerry Sikorski and Jonathan W. Cuneo was recently published on
the Internet by West Publishing. This letter's goal is to lock
the Department of Justice into a procurement that will not be
competitive, due to severe competition problems in the market for
computer assisted legal research (CALR). We we have stated our
contrary position elsewhere, asking that you formerly receive
public comments (pursuant to a Request for Comment) on the
procurement before it is finalized. There are, however, two
important issues that are raised by Sikorski/Cuneo which have
been raised before by West concerning that firms' control over
the body of federal judicial opinions and citations, that require
comment and clarification.
Sikorski and Cuneo correctly point out that West does not claim
copyright to any judicial opinion itself, and indeed, under
federal law such opinions cannot be copyrighted by anyone,
including the government. Then, however, Sikorski and Cuneo then
state the crux of the matter, namely that "West owns copyrights
in its compilations of case reports." Sikorski and Cuneo
describe the West copyright claims as follows:
"West's compilations of case reports, including
selection, arrangement and editorial enhancements, are
the cumulative product of the authorship efforts of
thousands of West editors over 119 years of development
and are, indeed, copyrighted. But West claims no
copyright in page numbers in and of themselves; all
kinds of people, including West's many competitors, use
West citations as a matter of course, at no charge, and
with no objection from us."
This statement by Sikorski and Cuneo obscures the nature of the
West's claim of control over the body of federal case law.
1. THE OWNERSHIP OF THE CASE LAW.
While West cannot copyright the work of a federal employee
(no one can), it has made repeated claims that it "owns" the
"selection, arrangement and editorial enhancements," of
opinions of federal judges. Dating back long before the
modern era of computers and data processing, West has served
for decades as the official reporter for many courts. The
judicial opinions published by West often include minor
corrections in citations and grammar. West has a long
history of suing or threatening to sue firms that attempt to
create databases based upon its published compilations of
judicial opinions. When West is both the official publisher
of the decisions in paper and the "owner" of the
compilations, the decisions are not in the public domain.
One recent example bears examination. Several of West's
competitors recently submitted Freedom of Information Act
(FOIA) requests to the Department of Justice for copies of
Supreme Court Decisions which were entered into a computer
database by Air Force employees, in order for the government
to run its "Finding Legal Information Through
Electronics"(FLITE) CALR service, which has been in
operation since 1964, eleven years before Westlaw began
operation. These FOIA requests were denied by DOJ and the
Air Force on the grounds that the judicial opinions, which
were keypunched by federal employees at taxpayer expense,
used as the source of their information, the West supreme
court reporters, and that West and the Air Force reportedly
have an agreement which prohibits public dissemination of
the opinions.
Once you cut through the thicket of technical legal
terminology (whether or not the cases are copyrighted, or if
West has a copyright type "proprietary interest" in the case
law, as West asserted in the FLITE FOIA), the fact is that
West and West alone controls access to much of the
historical body of federal case law, in the form that it is
used by federal judges.
2. WEST CLAIM TO COPYRIGHT IN PAGE NUMBERS.
The statement by Sikorski and Cuneo that West does not claim
a copyright in the page numbers of judicial decisions is a
highly legalistic and misleading statement. Sikorski and
Cuneo say that "West claims no copyright in page numbers in
and of themselves." [Emphasis added]. What do they mean by
saying "in and of themselves"? West does not claim a
copyright on the arabic system of numbering (1,2,3....), but
it does claim that its system of numbering judicial
decisions is protected under the copyright laws. Indeed,
this claim has been the subject of numerous lawsuits and law
review articles, including the well known Mead Data Central
V. West Publishing Company lawsuit that was settled between
the two companies, giving Mead a license to use the West
page numbers in LEXIS (but reportedly not on its CD-ROM
products) and the current litigation such as West Publishing
v. Gross [Civil Action 1-93-CV-2071, U.S. District Court,
North District of Georgia] and Matthew Bender V. West
Publishing, (United States District Court, Southern District
of New York, CIV No. 94-0589).
For example, in the Georgia case, West sued a CD-ROM
publisher, claiming that:
"Each volume of West's NRS publications includes a
copyright notice and contains materials wholly original
to West including, without limitation, the editorial
enhancements to each cases . . . and the selection,
coordination and arrangement of cases reported therein,
including the numbering and paging of volumes which
reflect that arrangement." [page 7, paragraph 16 of
the West complaint, dated September 10, 1993]
In the New York case, lawyers for Matthew Bender report that
they have reached a settlement with West that will give the firm
a license to use the West page numbers in its products. West's
effective monopoly on the legal citations in many jurisdictions
is also described in Patterson and Joyce's "Monopolizing the Law:
the Scope of Copyright Protection for Law Reports and Statutory
Compilations," UCLA Law Review, Vol. 36, No. 4, 1989. The
Department of Justice should be taking action to break up this
monopoly, rather than benefiting the monopoly through poorly
conceived government procurement actions.
3. LEGAL CITATION SYSTEMS ARE INHERENTLY MONOPOLISTIC.
In a June 1, 1994 letter to law librarians, West President
Vance Opperman defended his opposition to rules requiring a
public domain citation be used, by saying that "the best citation
rule is no citation rule," allowing the market to resolve the
issue. But the citation system is inherently monopolistic. If
every publisher used its own citation system, everyone would have
to subscribe to every publisher's products to locate case law.
Less is better than more when it comes to citations systems. A
single authoritative citation has many obvious advantages, and in
the absence of a public domain system of citations, whichever
firm has the dominate market share will become the defacto
standard. DOJ has a choice between a privately owned and
monopolistic system of citation for the law, and a publicly owned
citation system that will promote competition and better public
access to legal information. DOJ's procurement cannot be seen as
neutral on this point.
Sincerely,
James Love
Director, Taxpayer Assets Project
cc: Alice Rivlin, Mr. Steve Colgate, Ms. Anne Bingaman, Gerry
---------------------------------------------------------------------
TAP-INFO is an Internet Distribution List provided by the Taxpayer
Assets Project (TAP). TAP was founded by Ralph Nader to monitor the
management of government property, including information systems and
data, government funded R&D, spectrum allocation and other government
assets. TAP-INFO reports on TAP activities relating to federal
information policy. tap-info is archived at ftp.cpsr.org;
gopher.cpsr.org and wais.cpsr.org
Subscription requests to tap-info to listproc@essential.org with
the message: subscribe tap-info your name
---------------------------------------------------------------------
Taxpayer Assets Project; P.O. Box 19367, Washington, DC 20036
v. 202/387-8030; f. 202/234-5176; internet: tap@tap.org
---------------------------------------------------------------------