This morning's mark-up on HR 830

[James Love <love@tap.org>]

February 10, 1995.

This is the memo we are sending out on today's mark-up on HR 830.
The response from the net community has been unbelievable, and things 
appear to be turning around.  Yesterday the Republican majority staff 
said it would drop the entire FOIA assault!  Now we are addressing three 
other issues, one involving a West citation type issue, one involving a 
provision that would create a legal barrier for new government 
information products, and one that would give agencies the right to 
charge high prices for government information.  The calls, faxes etc have 
had a huge impact, and the mark-up will be interesting.  
jamie  (love@tap.org; 202/387-8030)





                          Taxpayer Assets Project
                   P.O. Box 19367, Washington, DC 20036
      voice:  202/387-8030; fax: 202/234-5176; internet: tap@tap.org


February 10, 1995

Re:  HR 830, Paperwork Reduction Act
     Sections on Public Access to Government Information

This memo supplements our February 9, 1995 letter expressing
opposition to Sec. 3518(f), the so called "West Provision,"
addresses opposition to elements of Representative Clinger's
proposed substitute language, and expresses our opposition to the
waiver in Section 3506(d)(1)(D), regarding the pricing of
government information.


1.   The Proposed Clinger substitute language for section
     3518(f), (found on page 55 of HR 830) on the "West
     Provision."

Representative Clinger's new language for Sec. 3518(f) addresses
one very important flaw of the original language.  It would
restore the applicability of the Freedom of Information Act
(FOIA) to computer records created by federal contractors. 
However, a new clause would benefit West Publishing in its effort
to defend its monopoly over legal citations, and it introduces
new intellectual property right concepts which should properly be
discussed by the Judiciary Committee, which has jurisdiction over
patents and copyrights.  In particular, in Section (3),
Representative Clinger would not allow an agency to:

          (3)  Appropriate, without proper compensation and
     due process, value added by any person to such
     information; 

What is this term "value added," that the government must
compensate?  Apparently it is a term which is broader than
property rights, for which the government must already
compensate.  The best example concerns the West Publishing
Company's attempts to assert a copyright over legal citations,
including the so called "page numbers" in the West law books
where one finds the published opinions of judges.  West says that
these page numbers are "value added," and that it "owns" and may
copyright the page numbers.

The West copyright claim is being challenged in a New York
federal court.  One of the litigants in the case, the Times-
Mirror Company, had earlier said it would settle its case with
West in return for a license from West to use its citation
system.  However, just yesterday Times-Mirror informed the court
that the settlement talks had failed and that it would renew the
litigation.  Another company in the NY litigation is Hyperlaw, a
small entrepreneurial CD-ROM publishing company, that now sells a
product that contains more than 20,000 federal circuit court
decisions and 4 years of supreme court decisions for $195,
without a West "page number" legal citation.  West is concerned
that it will lose the NY case on the copyright of page numbers. 
This concern is well grounded, because in the 1991 Feist decision
the Supreme Court rejected the so called "sweat of the brow"
doctrine, and in doing so, cited in a footnote "Monopolizing the
Law,"  a UCLA Law Review article by Professors Patterson and
Joyce, which criticized the West monopoly on legal citations.

The West copyright over legal citations gives the company a
monopoly.  If West loses its copyright litigation and its
monopoly on legal citations, it wants Congress to give it a new
property right for its "value added" contributions.  But who will
pay for this and what will this mean?  For example, what if
Hyperlaw (the NY firm), or Lawyers Legal Research (a Washington
State firm that provides online access to court opinions for only
$10 per hour), or Sunnyside Computing (California), or New Ray
Software (Cd-ROM legal publisher from Maryland), or any one of
the thousands of new technology companies want to enter this
market?  Can they sell legal information to the federal
government with the proper citations?  If so, who will compensate
West for its "value added" contributions?

The consequences of this proposed new language are unknown, and
action should be deferred until more is known.

2.   We also oppose (1) in the Clinger Substitute Language for
     Sec. 3518(f) that would prohibit agencies from creating new
     information products, when a private sector product
     "reasonably achieves" the agencies dissemination objective.

This section may lead to lawsuits over what is reasonably
achieves the agency's dissemination objectives.  Consider one
simple example.  Newt Gingrich launched THOMAS, a Library of
Congress Service that provides free access to Congressional
Information.  This service clearly competes with the Washington
Post's LEGI-SLATE service.  Would this type of provision (had it
applied to Congress), allowed LEGI-SLATE to litigation the
"reasonably achieves," clause?  This is nonsense.  The private
sector just needs the data and the right to do what they want
with it.  This provision was floated earlier, and rejected by the
Senate.  Moreover, HR 830 already addresses the issue of
encouraging private sector vendors in 3506(d)(1)(A) (found on
page 30).


3.   The Congress should not permit agencies to charge high
     prices for government information.  (The waiver in Section
     3506(d)(1)(D), page 31 of HR 830).

We oppose the provision in Section 3506(d)(1)(D) that would
permit agencies to charge fees for government information that
exceed the cost of dissemination.  This waiver, which is not in
the Senate version of the bill, enjoys no support in the right to
know community.  Agencies have shown that this will be greatly
abused.  For example, we are currently protesting a $1,500 fee by
the IRS for a "diskette" version of their Corporate Source Book. 
The FDIC asked a college student to pay $20,000 for ten years of
federal bank call reports that the student needed for his senior
thesis on bank failures.  We could go on, but the point is that
we do not trust agencies to use this waiver in a responsible or
reasonable way.  Just limit prices, period.  The waiver provision
will undermine Speaker Gingrich's goals of increasing public
access to government information.


----------------------------------------------------------------------
James Love, TAP; internet:  love@tap.org
P.O. Box 19367, Washington, DC 20036; v. 202/387-8030; f. 202/234-5176
12 Church Road, Ardmore, PA 19003; v. 610/658-0880; f. 610/649-4066