[11138] in Public-Access_Computer_Systems_Forum
Public Domain Cite Letter from UPD
daemon@ATHENA.MIT.EDU (James Love)
Fri Mar 14 20:18:28 1997
Date: Fri, 14 Mar 1997 17:38:08 -0600 (CST)
From: James Love <love@tap.org>
To: Multiple recipients of list PACS-L <PACS-L@UHUPVM1.UH.EDU>
Reply-To: Public-Access Computer Systems Forum <PACS-L@UHUPVM1.UH.EDU>
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INFORMATION POLICY NOTES
March 14, 1997
Today is the last day for the Judicial Conference's request for
public comments on the adoption of the ABA proposal for public domain
citations for court opinions. Comments can be sent by electronic mail to:
citation@ao.uscourts.gov. This is the letter sent by the Union for the
Public Domain (UPD), signed by UPD Chair John Lederer (johnl@ibm.net).
For more background on this topic, see:
http://essential.org/cpt/legalinfo/legalinfo.html.
Apparently West Publishing, the company with the current monopoly on
federal circuit and district court citations, has lobbied the judiciary
very aggressively on this issue, and a number of federal judges are said
to have already sent in letters in opposition of a public domain citation.
The courts refuse to release the judges letters until monday, after the
public comment period closes. Here is the UPD letter. jamie
(love@tap.org, 202.387.8030).
Union for the Public Domain
P.O. Box 19405
Washington, D.C. 20036
http://www.public-domain.org
ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S.
Courts, Washington, DC 20544
via Internet: citation@ao.uscourts.gov
Dear members of the U.S. Judicial Conference:
We write to urge the United States Judicial Conference to adopt a public
domain citation for judicial opinions.
The Union for the Public Domain (UPD) was created in 1996. The UPD is an
independent membership organization. Our goal is to protect and enhance
the public domain in matters concerning intellectual property.
Our membership is a diverse mixture of persons with eclectic backgrounds,
including many computer and software experts, small businesses, students,
professors, lawyers, librarians, concerned citizens, and others who are
seeking common ground in order to provide a stronger voice for the
public's rights in matters concerning intellectual property.
The UPD strongly urges the court to adopt a system of public domain
citations. As the court is aware, at present only the United States
Supreme Court publishes its own official reporter of court decisions. This
reporter is published years after the opinion is issued by the court. As
a consequence, the citation for most federal case law is based upon the
page and volume numbers of books sold by West Publishing, a firm owned by
Thomson, the Canadian publishing giant.
This may have been reasonable when West was the only publisher of lower
court federal opinions. Hiowever, today electronic publishing has allowed
multiple sources of case law. The exclusive use of West's citation system
today impedes the use of these alternative sources.
A system of citation which is based upon the private publishing of
opinions in books also has obvious technical limitations in today's world
of computers and the Internet. Why wait for a citation until a book is
published? How should page numbers be represented on Internet Web pages
or on a CD ROM? Why should lawyers and the public have to go back and
change their citations when West delivers its printed volumes? Clearly it
is time to embrace a more modern citation system that is appropriate for
the wide range on technologies used to disseminate legal information.
But an even more compelling reason is that West Publishing claims that it
actually owns the citations to federal court opinions. West Publishing is
currently pursuing these claims in copyright suits in New York and
Minnesota. In the recent merger between West Publishing and Thomson, the
Department of Justice has obtained a compulsory license for the citations.
This license spells out the cost of the West monopoly. Rival publishers
and non-profit publishers must pay fees which escalate to about 9 cents
per 1,000 characters, per "product" per year, to use the West citation.
In practical terms, this means a publisher has to pay from $1 to $3 or
even more for to publish a single federal court opinion in usable form.
This fees must be paid every year to West Publishing. If a publisher has
both a CD-ROM product and an online product, it has to pay twice -- once
for each product.
Moreover, under the terms of the antitrust settlement agreement, West can
refuse to provide this license to persons who wish to publish the cases
for free on the Internet. Indeed, one college was reportedly asked by
West to pay $8 per "hit," to use the West citation on a single court
decision it wanted to put on a free Internet site.
The West copyright claims on citations, and the courts' de facto
requirement that West citations be used has caused a troubling situation.
Law schools and others provide some federal case law on the Internet to
the public without charge, but its use is significantly impaired because
it cannot be cited. Moreover, the lack of a public means of citation
retards more widespread internet availability of the case law.
The West claim that it "owns" the citations under copyright law is being
tested in federal court. We are among those who believe the court should
and will reject the West assertion that it can copyright judicial
citations.
However, the Judicial Conference should be aware that West is seeking
other legal mechanisms to buttress its ownership claims to citations. West
is the single most important proponent of a new sui generis law for
atabases, that would define its paper bound court reports as a "database,"
and prevent unauthorized "extraction" of its citations. This proposal was
considered by a December 1997 diplomatic conference in Geneva, hosted by
the World Intellectual Property Organization (WIPO). Congress has already
indicated that it is planning hearings on this proposal. Moreover, West
publishing has sought other legislative vehicles to strengthen its
monopoly on judicial citations, such as an amendment to the federal
Paperwork Reduction Act.
Thus, regardless of the outcome of the copyright suits, the Court must
recognize that its continued reliance on a private company to provide
citations for its opinions may block others from providing usable case
law.
The idea that any private company could "own" something as basic as the
citations to court opinions is repugnant. Respect for the law is based
upon the notion that the law is essentially democratic and civic, not the
domain of private interests. We believe that the courts should provide a
public means of citation. Absent doing so the courts effectively mandate
use of a private company's product to access and use public documents.
There is now broad public support for the notion that government bodies
should use the Internet to enhance the public's access to public
documents. This is important for everyone, not only for practicing
lawyers or legal scholars. Yet the courts continued reliance on a private
comapany to provide the citations to make case law usable blocks full use
of the case law currently available to the public for free.
We recognize that judges and court employees will have to expend some
effort to number court opinions, and to number the paragraphs of opinions.
This cannot be a significant burden for the court. The benefits to the
public clearly warrant such effort. Indeed, in evaluating this proposal
the court should also consider the beneficial impact greater competition
would have on the courts own costs in obtaining citable case law.
For these reasons, we urge the Judicial Conference to adopt a system of
public domain citations to court opinions.
We respectfully request that the Court grant us an opportunity to address
the court at its public hearing on April 3rd.
Sincerely,
John Lederer
Chair
Union for the Public Domain
http://www.public-domain.org
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