HyperLaw on DOJ/Legal Info Procurement

[James Love <love@tap.org>]

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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
CROWN JEWELS CAMPAIGN - Juris, Legal Information
August 22, 1994

-    CD-ROM publisher writes Department of Justice in support of
     public domain database and citation system for federal
     judicial opinions.  HyperLaw, Inc. is intervenor in New York
     litigation over West claim to copyright of page numbers of
     judicial decisions.

-    Letter raises question of where West obtained its initial
     database of judicial opinions, making reference to 1974 and
     1976 contracts between Publishing and the Air Force, whereby
     the Air Force created computer database of judicial opinions
     at public expense, which was provided to West for free on an
     exclusive basis.


                  HyperLaw, Inc. 
             PO Box 1176 NY, NY 10023
                  212-787-2812
August 19, 1994

The Honorable Janet Reno
Attorney General of the United States
U.S. Department of Justice
10th Street and Constitution Avenue, N.W.
Washington, D.C.   20530

Dear Madam Attorney General:

We are a publisher of federal appellate and Supreme Court 
decisions on CD-ROM.   We have read various letters sent to 
you concerning the Department of Justice's Request for 
Proposal for computer-assisted legal research and recently 
attended a meeting at the Department where this RFP was 
discussed.  We wish to provide you with some additional 
information and thoughts concerning this process.

We believe the Department of Justice should hold a hearing 
to accept comment on its planned procurement of on-line 
legal research services which we understand can only be met 
by one of two vendors.  We also believe the contract should 
be broken up to provide an opportunity to other vendors of 
information services.

In many ways, the perceptual framework of the discussion has 
been based upon legal research as it was 15 years ago.  We 
believe it to be inappropriate to enter into a five year 
contract without stepping back and addressing some of the 
policy issues, performing an economic analysis of the cost 
of legal research to the Department, taking a long-term 
approach, and looking into the ways in which the Department 
may utilize its market power, not only to reduce costs to 
the government, but to make case law information more fairly 
and equitably available to the public at large.

First, to illustrate the long-term effects of short-term 
policy making, I would like to bring to your attention a 
contract entered into 1976 (and a predecessor 1974 
agreement) between the United States Air Force and West 
Publishing Company.  In 1974, West had yet to start Westlaw 
and was playing catch-up to Lexis which had been started a 
number of years earlier.  It appears that West was still 
setting type mechanically and itself did not have electronic 
versions of its cases.

Under the 1974 and 1976 agreements, the Air Force received a 
license from West to key-in non-proprietary federal case law 
from West books, and in return, the Air Force provided the 
keyed-in data to West at no-cost (the contract also 
permitted the Air Force to key-in proprietary West digests 
and summaries under the same restrictions).  The Air Force 
specifically agreed not to provide its version of the keyed 
in cases to others outside the government.  The keyed-in 
data consisted primarily of non-proprietary text of case law 
written by federal judges.  The Air Force did not need the 
permission of West to key that which was not copyrightable, 
i.e. the text of the cases.  It would appear that the Air 
Force in a sense jump-started Westlaw at no cost to West.

Then, in 1982, it appears that the Department entered into 
an agreement whereby it licensed back from West electronic 
tapes of the Westlaw database.  It now appears that a good 
part of the non-proprietary part of the Westlaw federal 
database licensed to Juris in 1982 consisted of the same 
data keyed-in by the Air Force and provided at no cost to 
West under the 1976 agreement.

Some have suggested that the Department of Justice study 
collecting the text of case law itself to be held for the 
benefit of the public to avoid repeating the scenario of the 
last 18 years.  Based upon this history, and what would be 
in the public interest, we would agree.

In addition, we wish to make a specific observations as to 
how the Department of Justice could use its market power to 
benefit the public.

Many courts have studied the adoption of public domain 
citation systems.  Indeed, the United States Court of 
Appeals for the Sixth Circuit is attempting to test such a 
system.  Without the cooperation of law publishers, these 
attempts will fizzle.  However, were the Department in its 
procurement to adopt a requirement that case law databases 
which the Department uses must include public domain 
citations where those citations have been adopted by the 
issuing court, then the market power of the Department as a 
legal case law user will have an enormous positive effect in 
stimulating the adoption of public domain systems.  We do 
not think it appropriate for the Department to favor 
databases that refuse to cooperate with court issued 
citation systems.

We also believe that the Department should implement a study 
to design a vendor independent computer "desktop" for the 
Department attorneys engaging in legal research.  Such a 
vendor independent desktop would provide easy access to 
Department attorneys to research sources other than those of 
the two main on-line providers, and as well provide access 
to CD-ROMs by publishers such as CCH, Lawyers Cooperative, 
BNA, CIS, the Government Printing Office, and Counterpoint 
Publishing, and even provide an easy gateway into the 
Internet.

The whole landscape of information access will change over 
the next few years, and it is inappropriate for the 
Department to continue to follow a model that matured over 
15 years ago.

There are of course other issues that fall more closely 
under the Judicial Branch, and, I have suggested above one 
example of how the Department could back up the creative 
initiatives of the Judicial Branch.

For example, over the past few years the federal judiciary 
has been appropriated many millions of dollars to implement 
technology.  It is my understanding that as a result of this 
effort, among other things, today almost all federal 
district court decisions are available at the source in 
electronic form, but, those electronic decisions are not 
being made available to the public.  It is as if the public 
paid for 2999.9 miles of a 3000 mile information highway, 
and that for want of will or money or resources, the last 
tenth of a mile that would directly benefit the public has 
not been built.  Perhaps as a result of support and interest 
by your department, the logjam holding up electronic 
dissemination of federal district court decisions will be 
broken.

Finally, I believe that the Department should also look at 
the inequity of the Department striking a deal with the 
major legal information vendors, leaving the public at large 
in the position of paying five to six times as much as the 
Department for the same information.  As I noted in the 
recent meeting at the Department on this topic, I thought it 
unlikely if any of the participants in the meeting would be 
able to pay a private attorney working on a private matter 
for intensive on-line legal research required to contest a 
matter with the Department.  We believe the Department 
should work toward removing the barriers that create 
artificially high costs for legal research.

Thank you for you consideration of this matter.

Sincerely,


Alan D. Sugarman
President HyperLaw, Inc.
sugarman@panix.com


Enc.
Agreement Dated April 14, 1976 between West Publishing 
Company and the Department of the Air Force (supplied to us 
by counsel for Tax Analysts).

cc:  Senator Carl Levin
     Representative Bernard Sanders

Footnote.

1.   HyperLaw, Inc. is a plaintiff in a copyright declaratory
     judgment action pending presently in the Southern District of
     New York, against West Publishing Company, relating to federal
     court decisions.  Matthew Bender & Company, Inc. and HyperLaw,
     Inc. v. West Publishing Company, 94 Civ. No. 589(LAP). 
     Because of a confidentiality order, we cannot discuss the

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