LEGAL INFO/Ogilvie on Feist Decision

[James Love <love@tap.org>]

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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
CROWN JEWELS CAMPAIGN - Juris, Legal Information
September 23, 1994

The following is a letter from John Ogilvie to Attorney General
Janet Reno.  Mr. Ogilvie, who is a Registered Patent Attorney and
a computer science Ph.D. candidate, discusses the __Feist
Publications__ opinion, in which the Court rejected the "sweat of
the brow" theory.  The Feist case is highly relevant to the West
Publishing assertions of copyright over its collections of
federal case law.  The letter was posted earlier to the
ARTIFICIAL INTELLIGENCE and LAW Discussion List
(ail-l@austin.onu.edu).

+++++++++++++++++++++++++++++++++++++++++++++++++++++++

                                   John Ogilvie
                                   jogilvie@asylum.cs.utah.edu


                             September 2, 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

RE:  Public access to digital government works

Dear Madam Attorney General:

     I am writing this letter regarding the Department of
Justice's Request for Proposal for computer-assisted legal
research.  I would like to add my voice to those asking the
Justice Department to use its market power to promote open public
access to electronic legal documents such as judicial opinions.

     I am a Registered Patent Attorney, as well as a computer
science Ph.D. candidate.  Suggestions I made in a law review
note[1] regarding software copyright law while at the University
of
Michigan have since been adopted into law by the Tenth Circuit[2]
and the note has been cited with approval by the Fifth
Circuit[3]. 


     I am disturbed by the largely successful efforts of elec-
tronic access providers to extend the practical scope of their
intellectual property protection.  I believe that government
works, such as judicial opinions, statutes, and regulations,
should be much more easily available to the public in digital
form than they are at present.  


     In her __Feist Publications__ opinion, Justice O'Connor
points out numerous flaws in the "sweat of the brow" theory, a
theory which presumed that copyright was a reward for the work
that went into compiling facts rather than an incentive to create
original works:

     The "sweat of the brow" doctrine had numerous flaws, the
     most glaring being that it extended copyright protection in
     a compilation beyond selection and arrangement -- the
     compiler's original contributions -- to the facts
     themselves. ... "Sweat of the brow" courts thereby eschewed
     the most fundamental axiom of copyright law -- that no one
     may copyright facts or ideas.
     __Feist Publications, Inc. v. Rural Telephone Service Co.
     Inc.,__ 111 S. Ct. 1282, 18 U.S.P.Q.2d 1275, 1281 (1991).

     The policies underlying __Feist__ apply squarely to the
question of public access to digital government works.  Access
providers should not be allowed to extend copyright protection
beyond their original contributions, which may include some
selection and arrangement of cases but often do not.  In many
situations, the principal original contribution made by such
providers is in the form of search and retrieval software.  

     Access providers are entitled to copyright and other forms
of intellectual property protection for their access and
retrieval software.  But they should no longer be permitted to
effectively extend that protection beyond the access tools to the
underlying government works.  As a matter of public policy, no
one may copyright opinions, statutes, regulations, and other
official works created by the government.

     Thank you for spending the time and effort to consider this
issue.  Please do what you can to help create an archive of
digital legal documents that are publicly available at a
reasonable cost.  


     The views expressed here are my personal views and do not
necessarily reflect those of my firm.  


     Best regards.

                                   Sincerely yours,



                                   John W.L. Ogilvie
                                  jogilvie@asylum.cs.utah.edu

[1]  **Defining Computer Program Parts Under Learned Hand's
Abstractions Test in Software Copyright Infringement Cases,** 91
Mich.L.Rev. 526 (1992).

[2]  __Gates Rubber Co. v. Bando Chemical Industries, Ltd.,__ 9
F.3d 823, 835 (10th Cir. 1993).

[3]  __Engineering Dynamics, Inc. v. Structural Software, Inc.,__
No. 92-3444, (5th Cir. July 13, 1994).

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