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IS TAX ANALYSTS v. DOJ "LAX ANALYSIS?" (fwd)
- To: tap-juris@tap.org
- Subject: IS TAX ANALYSTS v. DOJ "LAX ANALYSIS?" (fwd)
- From: James Love <love@tap.org>
- Date: Mon, 29 Jan 1996 21:42:32 -0500 (EST)
---------- Forwarded message ----------
Date: Mon, 29 Jan 1996 21:01:27 -0500 (EST)
From: Alan Sugarman <sugarman@hyperlaw.com>
To: cni-copyright@cni.org
Subject: IS TAX ANALYSTS v. DOJ "LAX ANALYSIS?"
THE HYPERLAW REPORT January 29, 1996
IS TAX ANALYSTS V. DOJ "LAX ANALYSIS?"
DISTRICT COURT DISMISSES TAX ANALYSTS ATTEMPT TO OBTAIN WEST DATABASES LICENSED
TO JURIS.
FOIA CASE RAISES COPYRIGHT LAW ISSUES.
On January 16, 1996, Judge Gladys Kessler, United States District Court for the
District of Columbia, dismissed part of a FOIA suit brought by Tax Analysts to
force the Department of Justice to turn over legal databases licensed by West
to DOJ pursuant to a 1988 contract (a successor contract to a 1983 contract.)
The court construed the contract to require DOJ to return to West both
"proprietary" and "non-proprietary" databases (terms defined in the contract)
upon the conclusion of the contract and concluded that the "non-proprietary"
databases were not under the "control" of DOJ, and therefore were not subject
to the FOIA.
As a subsidiary argument to the FOIA and contract interpretation arguments, Tax
Analysts had argued that even if the contract could be construed to require the
return of the "non-proprietary" databases, the contract was not valid because,
among other reasons, the licensing provisions were "nothing more than an
attempt by West to create a private copyright in public domain data in
derogation of the Copyright Act."
The matter was before the court on a motion to dismiss on the pleadings only.
The parties had not taken any discovery. Presumably as a motion to dismiss,
there were no record facts before the court. Nevertheless, the court relied
upon facts not in the pleadings including affidavits submitted by West and DOJ
and "facts" recited by and assumed in the West v. Mead case, which facts were
disputed by Mead, and were never found by a court (because the case was settled
after the 1988 trial on the merits.)
The court cited West v. Mead decision without discussing Feist or the Joyce and
Patterson law review article cited with approval in Feist. Although the court
stated that the West v. Mead case held that the Westlaw database was
copyrightable (which it did not), West v. Mead actually concerned the internal
pin-point pagination of the West opinions which Lexis was using. Moreover, the
court's citation to the Callahan case is inapposite.
Even if the motion had been a motion for summary judgment, the court did not
have before it complete facts as concerns JURIS. West did not license the
Westlaw database to DOJ, but licensed public domain material from the Westlaw
database. The legal case databases licensed by West to DOJ DID NOT INCLUDE THE
WEST PIN-POINT CITATIONS. It appears the court assumed that West licensed the
Westlaw database to DOJ. However, the "non-proprietary" databases licensed to
DOJ were a non-proprietary subset of the Westlaw database, and excluded the
headnotes and the internal pagination. Thus, West v. Mead would appear to be
irrelevant.
JURIS was essentially a DOJ clone of the FLITE legal text retrieval system
created by the Air Force in the early 1970's (presumably, DOJ did not
acknowledge in its filings that JURIS was a derivative of FLITE.) In 1976, the
Air Force reached an agreement with West under which the Air Force with
taxpayer funds keyed in West reporters of public domain federal court opinions
and provided back to West an electronic database from this data (this database
formed the backbone of Westlaw.) Since DOJ wanted access to these same FLITE
created databases, it licensed this data back from West in 1983 (prior thereto,
I believe, DOJ obtained the same data directly from the Air Force.) This was
of course the context in which the 1983 and 1988 West-DOJ agreements were
negotiated and perhaps would have led to a better understanding of what
"proprietary" and "non-proprietary" meant. One could well argue that the
non-digest versions of the historical West decisions keyed in by the Air Force
is the non-proprietary data to which the contract referred.
As another example of how data from the government was recycled by West, in the
1980's and even today, West pursuant to contracts with the Administrative
Office of the United States Courts acted and acts as a printer of slip opinions
for several circuits, and creates a database under the government contracts in
the process. These government funded circuit court databases were then
licensed by West back to DOJ under the rubric of "Federal Reporter." Had the
court considered all of the affidavits in its record, it would have considered
this fact, because HyperLaw filed an affidavit to this effect.
The court's comments about the ease of obtaining court opinions (say, more than
5 years old) from the court clerk or anywhere else and the so-called
availability of free law libraries is not based on facts in the record (since
there was no record). Indeed, had the court learned that the Air Force keyed
in the decisions from West's books in 1976 because the decisions were not so
easily obtained directly from the courts, perhaps it might have reached a
different result. Moreover, the Supreme Court in the original Tax Analysts
case in (492 U.S. 136 (1989)) had noted in a footnote the difficulty Tax
Analysts had met in obtaining new tax opinions from district court clerks.
Although the motion was before the court on the pleadings as a motion to
dismiss, it would appear that the contract is sufficiently ambiguous that it
would be inappropriate to construe the contract without resorting to "parole
evidence" and it would also appear that the court considered and decided
numerous facts both outside of the pleadings and not in the record.
Here is an excerpt from the court's opinion:
*******************************
Tax Analysts v. United States Dept. of Justice, pp. 13 -14, No. 94-0043,
January 16, 1996
As to Plaintiff's first argument -- that the entire 1988 contract is
invalid -- it is incorrect that West is claiming a "property interest" in the
case law of the U.S. Courts and administrative regulations of government
agencies. What West is claiming is an ownership interest in the "electronic
products it has created," DOJ Motion at 9, namely, the <emp>electronically
formatted</emp> case law, administrative decisions and other material that is
provided to DOJ pursuant to the 1988 agreement. Making data "readable" for a
software program (such as JURIS) takes considerable time and effort. The text
of every opinion, administrative ruling, etc., must be formatted consistent
with JURIS conventions, including text and file restrictions, paragraph
indentations, centering of headings, and replacement of JURIS-unacceptable
characters with an equivalent word or abbreviation. Plaintiff offers no
support for its contention that West's contribution was solely "mechanical
drudge- or machine-work." Pl.Opp. at 7.
And as Defendants properly point out, the public may still obtain the
public-domain material -- i.e., non-West formatted material -- from the
government directly for nominal copying costs (e.g. through the clerk's office
in a courthouse). The public may also obtain this material for free from
libraries. In any case, Defendants correctly argue that the public does not
have a right to the electronic format that West has created (at considerable
expense) pursuant to its contract with DOJ.
West has not attempted to license "public domain" data, but rather its
<emp>electronic compilation</emp> of public domain data, which it is legally
entitled to do. See West Publishing Company v. Mead Data Central, Inc., 616
F.Supp. 1571, 1577 (D. Minn. 1985) (holding that West database is copyrightable
because "while the data lies in the public sphere, the arrangement and
pagination of this public material reflects the skill, discretion and effort of
the person crafting the arrangement."), aff'd 799 F.2d 1219 (8th Cir. 1986),
cert. denied, 476 U.S. 1070 (1987); see also Callahan v. Myers, 128 U.S. 617,
649 (19??) ("such work of the reporter, which may be the lawful subject of
copyright, comprehends ... that order of arrangement of cases, the division of
the reports into volumes, the numbering and paging of volumes ...") Thus,
Plaintiff has failed to establish that the 1988 contract is invalid, and
therefore that basis for arguing that DOJ "controlled" the West-provided data
must fail."
***********************************
Disclosure: HyperLaw is a plaintiff-intervenor in Matthew Bender's copyright
declaratory judgment action pending presently in the Southern District of New
York. HyperLaw submitted an affidavit in the Tax Analysts case in which it
took no position on the merits, but brought to the courts attention the
government funded circuit court databases created by West and licensed back to
DOJ. In addition, Tax Analysts on HyperLaw's behalf paid the costs to
transcribe and thereby preserve certain transcripts of depositions taken in the
HyperLaw case.
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Alan D. Sugarman Federal Appeals on Disc tm CD-ROM ::
President Opinions of US Courts of Appeals ::
1993 to Date - All Circuits ::
HyperLaw, Inc. ® ::
P.O. Box 1176 DO NOT SHORT CIRCUIT YOUR CLIENTS ::
New York, NY 10023 ::
sugarman@hyperlaw.com 212-787-2812 212-496-4138(fax) ::
::
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