TAP letter to Florida Supreme Court on Public Domain Citations

[James Love <love@tap.org>]

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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
Crown Jewels Campaign - legal information



this was our letter to the FL Supreme Court, sent yesterday, on the topic
of public domain citations.
 
jamie (love@tap.org)



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


July 31, 1995

Clerk
Florida Supreme Court
Supreme Court Building
500 South Douval Street
Tallahassee, FL 32399

     The Taxpayer Assets Project (TAP) is pleased to offer
comments on the Florida Supreme Court's proposed adoption of
Appellate Procedure 9.800(n) pertaining to citations.  TAP is a
non-profit organization which was started by Ralph Nader in 1988
to monitor the management and sale of government property,
including government information.  Over the past four years TAP
has been involved in a large number of initiatives to broaden
public access to government information, and was instrumental in
getting such items as the SEC EDGAR database, the Congressional
Record, the Federal Register and pending federal legislation
available to the public via the Internet.  TAP has also been very
deeply involved in efforts to broaden public access to court
opinions.

     It appears as though the Florida Supreme Court is responding
in some way to the current controversy surrounding West
Publishing's assertion of proprietary ownership of the citations
to published judicial opinions, by proposing to make the pinpoint
citation legally optional.  In our view, such a change may do
little to benefit the public, and may obscure the more central
issue of "who owns" Florida law.

     As the Court is no doubt aware, ever since West Publishing
asserted a copyright interest in its pagination of published
court decisions, there has been concern that a single company,
West Publishing, would be allowed to exercise great monopoly
power over the market for legal information.  While West has
argued that citations are a value added feature which benefits
from market place competition, most experts disagree. 

     Citations to legal opinions are mechanisms for the judge and
the different parties in a proceeding to communicate.  By their
very nature, legal citations are monopolistic.  That is, fewer
citations are better than more citations, and the best system,
from the standpoint of legal practitioners and researchers, is a
unified, single method of citation, which allows a person to
provide a single unambiguous and precise pointer to a legal text.

     For more than a century West Publishing as acted as a sort
of quasi-official arm of the court system, and the issue of the
ownership of the citations themselves was of minor controversy or
importance to most practitioners or researchers.  However, with
the changes in information technology, these issues are suddenly
very visible and very important.  With the Internet it is now
possible to provide the public access to huge databases of
government information, including databases far larger than the
body of published judicial opinions.  There is now an explosion
of services, some free and some commercial, which provide access
to different types of government information, with various forms
of searching mechanisms.  The "value added" isn't the text of the
opinions or the "citation" to the text, but the methods used to
search and retrieve data.

     Because of clouds over the ownership of court opinions,
arising from West Publishing assertions of ownership to
corrections to the text of opinions and to the accepted
citations, a revolution in access to court opinions has not yet
occurred.  Services like WESTLAW or LEXIS (the only company
licensed by West to use the entire body of West pagination) are
priced at roughly $4 per minute or more, while costs for
accessing other government databases are falling dramatically. 
If the courts would break the West monopoly, then all legal
researchers would benefit greatly.  Indeed, we expect that in a
short time services like Microsoft Network, America Online,
Prodigy, Lawyers Legal Research, Law Journal Extra or other
Internet services would make the body of caselaw available to the
public at huge discounts, perhaps pricing basic access to the
opinions for free, while they sell other value added features for
a fee.  But first the courts must resolve "who owns" the law.

     Courts must ensure that the law is truly in the public
domain, and copies of court opinions should be available to
anyone who has access to the Internet or other computer networks. 
In order to broaden access to legal information, courts have to
make sure that private publishers, like West, do not "own" such
items as corrections to text or accepted citations.  The State of
Florida can take a number of steps to broaden access to court
opinions.  Specifically:

1.   The "official" version of the opinions should be available
     directly from the courts, including all corrections or other
     editorial changes.  Any official "reporter" of court
     decisions should place the text of the decisions into the
     public domain.

2.   Courts should use computer bulletin boards or Internet
     servers to disseminate copies of opinions electronically. 
     This is not a difficult or expensive task.  In a January 3,
     1995 order, the U.S. Court of Appeals for the 7th Circuit
     said that its cost of operating a computer bulletin board
     system to disseminate opinions costs less than $1,000 per
     year, and saved the court much more than that in terms of
     reduced staff time for the dissemination of information.  A
     copy of that order is attached to this letter.

3.   Courts should fix citations to the opinions when they are
     first issued, so that anyone can immediately disseminate the
     information with an accepted citation.  Citations consist of
     two items:  a unique identifier for the opinion, and a
     method of dividing the internal text into smaller sections
     (the so-called pinpoint citation).

4.   Proposals for a unique identifier for the case have
     typically focused on two alternatives.  In Louisiana, the
     Court, docket number and date of the opinion are used.  In
     Wisconsin and South Dakota the state bar associations have
     proposed a system of sequential numbers.  The American
     Association of Law Libraries recently adopted a report which
     recommends the sequential numbering system.

5.   Proposals for public domain pinpoint citations have also
     focused on two alternatives.  The State of Louisiana uses
     the page breaks from slip opinions.  The States of
     Wisconsin, Colorado and South Dakota are considering
     paragraph numbering.  Paragraph numbering is already used by
     the federal Military Court of Appeals and the Province of
     British Columbia, and is the method recommended by the
     American Association of Law Libraries, the American
     Association of Legal Publishers and most private publishers,
     with the notable exception of West Publishing.  TAP strongly
     recommends paragraph numbering, as a method which is
     technology and vendor neutral.  The key to a system based
     upon paragraph numbering is for the courts to assign the
     paragraph numbers at the time when the opinion is issued. 
     It is also important to note that it isn't particularly
     important how the paragraph numbering is done, so long as
     everyone uses the same numbers.  This is best accomplished
     when a single entity assigns the paragraph numbers, and the
     easiest way to do this is for the court itself to provide
     the numbers when the opinion is issued.

We are including some background information on this issue as
attachments.   Thank you for the opportunity to provide comments
on this issue.


Sincerely,



James Love
Director
Taxpayer Assets Project


                                 APPENDIX

    January 3, 1995 Administrative Order by the Seventh Circuit Court
                                    
               on the issue of fees for court information.
          -----------------------------------------------------

                   THE UNITED STATES COURT OF APPEALS
                         FOR THE SEVENTH CIRCUIT
                         Chicago, Illinois 60604
                             January 3, 1995


                   Chief Judge Richard A. Posner
                   Circuit Judge Walter J. Cummings
                   Circuit Judge John L. Coffey
                   Circuit Judge Joel M. Flaum
                   Circuit Judge Frank H. Easterbrook
                   Circuit Judge Kenneth F. Ripple
                   Circuit Judge Daniel A. Manion
                   Circuit Judge Michael S. Kanne
                   Circuit Judge Ilana Diamond Rovner
 IN THE MATTER OF PUBLIC ACCESS TO THE SEVENTH CIRCUIT BULLETIN
 BOARD SYSTEM (BBS)

                       ADMINISTRATIVE ORDER

     The Judicial Conference of the United States has recently
provided for a fee of $1.00 per minute for electronic public
access unless the court exempts users. 
     The Seventh Circuit Bulletin Board System (BBS) was
established in 1990.  It contains all of the court's open
dockets, closed dockets back to 1988, slip opinions since
January of 1990, the Federal and Circuit Rules, the
Practitioner's Handbook, special  announcements such as problem
areas in appellate practice, and job openings such as bankruptcy
judge and federal defender vacancies.  The system is run on three
286 machines which would not otherwise be utilized by the courts
as all judges and staff have more advanced machines.  The total
cost of the modems and software was $730.  The BBS is set
up with three lines and can be accessed by judges, staff, and
anyone who signs onto the system.  These telephone lines have a
monthly charge of $13 for each line.  The system requires about
two to three minutes of personnel time to monitor each day.  The
BBS has about 850 calls a month, of which an estimated 85 per
cent are nongovernmental users.  The nongovernmental users are on
the system for about an average of 900 minutes per month which
would result in annual charges to them of $10,800, if they were
billed. 
     The judges of this court frequently advise counsel of the
need to check the docket, the record, and recent opinions so that
the judges will have the benefit of accurate research.  It
is in our best interest that lawyers frequently check the docket
in their appeal and check for recent opinions on point which may
not have been published or reached the private computerized legal
research systems.  It is imperative that attorneys have accurate
and up-to-date information. 
     If attorneys have to pay for computerized court information,
they will revert to calling deputy clerks for free information as
they have in the past.  They will inquire by phone or in-person
rather than use a computer to check whether a certain appeal has
been decided, whether their pleading or brief has been received,
whether there has been a ruling on a motion, how many copies of a
motion must be filed, etc.  Currently, users are encouraged to
use their computer rather than calling a deputy clerk.  The $468
that we pay annually for the computer telephone lines equals
about 20 hours of deputy clerk time.  Nongovernmental users
annually use the BBS for 180 hours.  If they did not use the BBS
because of the fees, but called the clerk's office, there would
be an exponential growth in deputy clerk time responding to
inquiries.  Simply put, usage of the BBS not only saves the time
of attorneys and parties, but it drastically reduces staff time
answering inquiries. 
     Currently, an attorney who has never used the BBS can dial
in, register, and obtain current information on her or his case. 
Under the fee system, the new user would have to make
arrangements with the San Antonio headquarters for payment and
issuance of a password and then be eligible to use the system. 
Of course, any snafus or disputes over billing would result in
additional delays.  About 60 per cent of our BBS users call less
than three times a month.  About 50 per cent only use it once a
month.  Users constantly change as some attorneys only have one
pending appeal. 
     Charging a fee would also add to the workload of the court
staff in monitoring the new billing system as well as in
responding to the additional telephone and in-person information
requests from those who either did not want to pay the $1.00 per
minute charge or could not register to use the system to obtain
the information that they would need.  This would be particularly
true of sole practitioners and small firm lawyers
who do not have a regular federal practice. 
     Charging a fee for this previously free public information
amounts to a confiscatory tax on public information.  If we had
charged nongovernmental users a fee during the last year, they
would have paid $10,800.  When compared with the costs to the
court of about $468 per year, it is obvious that such a charge is
not a user fee, but a tax on previously free court
information. 
     In addition charging such a fee raises serious questions as
to whether the courts are dissuading the many new computer
services that have recently started to compete with the large
companies which have traditionally provided the lawyers with
legal research materials.  According to reports in the December,
1994 issue of American Bar Association Journal at pp. 38-39, the
Antitrust Division of the Department of Justice is looking at
barriers to entry in the computer-assisted legal research market. 
The Department is looking for ways to improve public access to
federal court opinions.  Our system has no barriers, encourages
public access, and saves the government money.  A fee system will
cost more than the current nonfee system. 
     THEREFORE, the United States Court of Appeals for the
Seventh Circuit exempts users of its system from paying any fee.


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