Re: Still waiting... (WEST-TAP ...) (fwd)

[James Love <love@tap.org>]

Readers of tap-info:

I am forwarding one of several exchanges between myself and Dorothy 
Molstad, a spokesperson for West, following the Oct 19 meetings.  There 
have been others, and I could be persuaded to post them to this list, 
although I have resisted from doing so.  Those interested can either 
check out the archives of law-lib@ucdavis.edu or send me or Dorothy a 
note.  This was the latest, and it is my response to a note Dorothy 
posted yesterday.  jamie


---------- Forwarded message ----------
Date: Fri, 21 Oct 1994 10:58:05 -0400 (EDT)
From: James Love <love@tap.org>
To: law librarians <law-lib@ucdavis.edu>, com-priv <com-priv@psi.com>
Cc: dmolstad@research.westlaw.com
Subject: Re: Still waiting... (WEST-TAP ...)


from: James love
re:  Dorothy Moldstad's requests for information.
date: October 21, 1994

A number of persons on Law-lib have been imploring West and me to
tone down the recent exchanges over such important items as what
type of breakfast West serves to reporters at its news
conferences.  This seems like a good idea.  However, as long as
Dorothy Molstad keeps posting provocative messages with titles
like "unanswered questions" and "still waiting," I intend to
respond.  This is my response to Dorothy's October 20 "still
waiting" post.  I have seen it on law-lib and com-priv.  [I would
ask Dorothy to provide a cc: to me in the future on posts which
she requests a response from me, so I can know where to send
them.].  I will also post a brief follow-up request from some
information from Dorothy Molstad in a separate message, which
will be focused on issues that are, in my view, important.

Regarding Ms. Molstad's post:

>From: Dorothy Molstad <dmolstad@research.westlaw.com>
>Subject: Still waiting...

>TO:       Jamie Love
>FROM:     Dorothy Molstad
>RE:       Still waiting
>DATE:     October 20, 1994

>Your posted reply to mine of October 19 ("I'd like to set the
>record straight") still leaves critical questions unanswered.

>1.   On October 19, you referred to the "Attorney General's      
>     proposal for public domain citation system and database of  
>     judicial opinions."  To the best of my knowledge, no one
>     has seen the proposal you specifically reference.  It
>     sounds like you have it or have seen it, and so, once
>     again, please tell us, in detail:

    As I replied in the previous attempt to answer this very same
question, the only thing that I have seen is Attorney General
Janet Reno's  September 2 press release, which West has, and is
including in some of its own press packets.  If there is anything
further, I haven't seen it.

>         1.   What, exactly, is contained in this proposal?

          please see answer above.

>         2.   Where can the public obtain copies?

          from the Department of Justice.

>         3.   How much will this proposal cost American
>         taxpayers -- to gather, arrange, cite, and store
>         millions of court decisions?

          There have been four public estimates of the cost of
providing the government with a legal database.  West says it
will cost about $100 million to create the database.  I assume
that West is including both federal and state case law in its
estimate, and is talking about historical cases.  Lawyers Legal
Research (LLR), a Bellevue firm, has indicated that it would
provide the Department of Justice with a complete copy of all
Federal Supreme Court and circuit court opinions, with paragraph
numbering and a public domain cite, for $36,000 per year.  At
present any library, law firm or publisher can buy these slip
opinions, plus decisions from 26 states, from LLR for $750 per
year.  These, of course, are new opinions, and are largely
opinions which the courts are already disseminating
electronically from bulletin boards.

     Tax Analysts says that it would cost about $500,000 per year
to gather all federal caselaw, including all the lower court
decisions, many of which must be key punched in overseas.  This
firm estimates it would cost about $6 million to key punch in the
10 years of data which are "missing" from the DOJ JURIS database,
because of the contract dispute with West.  There is a FOIA case
with DOJ over the JURIS database.  Tax Analysts thinks it has a
50/50 chance of winning the case (Which is for the text of the
opinions, not the copyrighted headnotes).  [For those who have
posted messages on law-lib who question whether or not West does
indeed assert copyright over the minor changes they make from the
slip opinions, I would suggest that you discuss this with the
firms that have recently or currently engaged in litigation with
West over this very point, such as Alan Sugarman, who is
litigating these issues in New York as we speak.]  If Tax
Analysts wins its foia case, it has indicated that it will give
the entire body of federal caselaw, through Dec 31, 1993, to the
University of Penn, to be put into the public domain, available
for the cost of dissemination to anyone with no restrictions on
reuse.

     Finally, the Department of Justice has indicated that it
might cost as much as $20 million to replace the missing JURIS
materials (the historical records).

     So, the facts seem to be that it would cost about $.5
million per year to gather all new federal case law, and more if
state case law was included.  The real large numbers will come
from the historical records, but this could change in West cannot
continue to assert its copyright on the changes in grammar and
other minor tweaks of the slip opinions.  A key issue for the
historical records concerns the use of scanning technology.  West
has reportedly given some firms permission to key punch its older
cases, but gotten agreements that they will not use scanners. 
(Such as in the recent Georgia CD-ROM case).

     As a final aside.  When public access to EDGAR was first
proposed, the Contractor (BDM International) said it would cost
more than $60 million open access to 1,400 federal depository
libraries, and as much as $18 million per year to maintain access
after 1997.  In fact, EDGAR is available to the whole world on
the Internet for a cost of about $340,000 per year.  Public
access to EDGAR was been very warmly received, and many
publishers have found ways to survive and prosper, offering EDGAR
type products.  The value added industry that is based upon the
EDGAR database has also really taken off.



>         4.   Under what authority is this proposal being
>              issued?

               I guess the Attorney General thinks she can talk
about these things if she wants to.  It is also the case the
there is an outstanding presidential executive order which was
issued by Jimmy Carter in 1979 which directs the Attorney General
to provide an online system of access to federal legal
information.  This was the executive order under which JURIS was
offered to all federal employees.  And, of course, DOJ had run
JURIS from 1971 to 1993.

>         5.   Have you, or has anyone at the Department of      
>         Justice, yet shared this specific proposal, and its 
>         projected costs, with the committees of jurisdiction 
>         in Congress -- including Budget and Appropriations?

     As indicated above, as far as I know, DOJ is seeking
comments on the general concept, and has never developed a
specific proposal.  But, of course, West has encouraged a large
number of congressmen to write the Department of Law, asking for
numerous opportunities to review every conceivable aspect of
this, so it is safe to assume that DOJ will proceed very
carefully, and probably very slowly.

     Here it is important to note that DOJ officials have been
telling reporters that they are principally focusing on the
citation issue, and not the public database.

>          6.   In today's posting, you responded to my question
>               of yesterday -- "Please name the 'non-West
>               publishers' who 'widely support' this proposal"
>               -- by noting that "many publishers" have voice
>               support.  Please name those "many publishers."

    A little patience will be rewarded here.  I will post,
probably on monday, some notes from the Oct 19 and 20 meetings,
with those types of details.  But the more important documents
will be those signed by the publishers, rather than by me, since
West is implying that I have not fairly reported these events.  I
expect that within 2 or three weeks (certainly before
thanksgiving) that many of the publishers will be ready to issue
statements on the public domain citation issue.  I expect that
there will be a lot of support for the public domain citations,
and somewhat less support for the public domain database, since
some publishers believe the public domain database will hurt
them.  However, it was interesting to hear one CD-ROM publisher
tell a congressional staff member that while in general he
opposed a government run database of court decisions, he would
support it as absolutely essential if it was the only way to get
a copy of the official "corrected" opinion, and he thought that
West was crazy to be pushing its competitors into a position of
supporting a government run database.


>2.   Once again, please explain how West can have what you term
>     a "monopoly" (generally defined as lack of competition) in
>     a legal information industry that includes at least 175
>     providers of over 700 case law publications -- to say
>     nothing of the host of legal databases available on
>     Internet.

     Once again, of course.  West does not have a monopoly on all
legal publications.  It does have a monopoly on an important
element of the required citation for many import court decisions. 
Either by formal rule or by informal, but no less compelling,
rules, lawyers must use the West page numbers to cite much of the
outstanding caselaw.  West is the only comprehensive paper
publisher of the federal courts and the only paper publisher of
court decisions from all 50 states.  West is the standard, really
the gold standard, of legal citations, based upon its print
business.  The fact that courts generally require the use of a
West cite is not something that West is responsible for, it is
something that the courts are responsible for.  The fact that
West asserts a copyright on its page numbers, and has issued very
few licenses to firms to use those page numbers, has given the
firm enormous monopoly power in the legal publishing field.

     You can ask and ask and ask this same question, and you will
get pretty much the same response.

>3.   Regarding the "500" letters opposing your citation/database 
>     idea -- which you say have been delivered to DOJ -- when
>     did you call?  With whom did you speak?  Call again, and if
>     the figure they report is much less than 20,000 letters
>     from West employees, their families, customers, vendors and
>     other friends -- the legendary "efficiency" of the federal
>     government in transmitting information is once again
>     suspect.

>My source for the figure of 20,000?  Every one of those folks
>has shared a copy of his or her letter with West.


     Dorothy, if you say that West employees, their families and
other people with ties to West have written 20,000 or 200,000
letters to DOJ I am ready to believe you.  A DOJ official told me
it was 500 letters.  Maybe he was misinformed.  I don't intend to
call again to get a new number.  You can call DOJ and ask, and if
you think this is really important, let us all know just how many
thousands of letters the West employees are writing to DOJ about
this.  Of course, I might add that one might expect a fairly good
response on this from West, since 6,000 West employees were told
by Dwight Opperman that they might lose their jobs if there is a
public domain citation system.  However, if West is facing such a
terrible fate, why is LEXIS, which is in pretty much the same
business, supporting the public domain cite?  How can these two
firms, both the same business, be so far apart in their
assessment of the public domain cite on their business?

>Once again, I am looking forward to your response.  And once
>again, just the facts, please.

>Dorothy Moldstad, West Publishing

   Once again, I have responded.  Now, I will follow this will a
brief note asking you a few questions, and I would appreciate a
response from you, as I have responded to your questions.

     James Love (jamie@tap.org; 610/658-0880).