Judiciary Battles To Computerize Citing System

A publishing company -- stalwart of the Paper Age -- is feeling the effects as a group of judges, lawyers and others push to move citations online.

by / August 31, 1997
Citing to federal and state court opinions normally isn't an issue to inspire heated debate and prolonged struggle, but it's at the center of a war over the way judges, lawyers and others will refer to judicial decisions in the future.

On one side is West Publishing Group, the nation's most prominent legal publisher for more than a century, and reluctant judges and court staff who want to keep the case law citation standard owned by West. On the other side are lawyers, law librarians and a smattering of judges and staff who say the digital era has arrived, and the legal profession and justice system must embrace a new system to accommodate electronic documents, particularly those becoming available on the Internet.

West, purchased last year by Canada's Thomson Corp., leads the fight against court-issued, vendor-neutral and format-neutral citations, because it holds a lucrative copyright on the dominant method for identifying judicial rulings. But the Minnesota-based company, which has managed to retain its monopoly despite several court challenges, now finds itself facing some formidable advocates of a nationally uniform citation standard free from copyright claims, along with two federal court decisions that essentially strip West of its copyright. Those rulings have been appealed to the 2nd Circuit Court of Appeals, but if they are upheld, they may transform the Internet into the primary source of public access to judicial information.

Many federal and state court opinions, including those from the U.S. Supreme Court, federal circuit courts of appeals and many state supreme courts, already are available from the Internet for free, usually from
law school Web pages like , but increasingly from the court's own sites. There's also a growing number of fee-based case law databases on the Internet, along with numerous collections on CD-ROM. This rapidly expanding electronic access to legal material, which isn't tied to printed-page references, is at odds with West's page-based copyrighted citation system, say lawyers and law librarians.

Several states -- including Wisconsin, Louisiana, South Dakota and Oklahoma -- have adopted or are experimenting with court-generated public domain citation schemes, designed to be medium-neutral so they could be used equally by print and electronic publishers. But it wasn't until the American Association of Law Libraries (AALL), a former ally of West, issued a report in 1995 that the smoldering movement for a new citation standard really started to blaze.

In that report, task_force.html>, AALL called for the courts to adopt a universal system based on year, court, sequential numbering of decisions, and paragraph numbers, which could be used with equal confidence regardless of the source -- electronic, paper or another form.

According to the AALL and other critics, problems with the current printed-page citation system include:

* There's no permanent citation until a printed copy is privately published, often a month or more later than the opinion is issued.

* Copyrighted citation systems reduce competitiveness and create a de facto monopoly for a few select publishers.

* Page numbers change with page size and font size, forcing lawyers to use cumbersome parallel cites from different publishers to the same case.

Citation reformers argue that adopting a new, simple national standard would eliminate the rising confusion caused by West competitors starting to provide their own citations. And, they contend, it would reduce the cost of getting and citing to judicial material because it would allow even more publishers to enter the legal market without paying copyright licenses or risking infringement suits.

"The point is that a format-neutral citation is justified by the fact that courts can electronically disseminate opinions as soon as they're released," said Alan D. Sugarman, president of New York's HyperLaw and a party in the challenges to
West's pagination copyright. "We need a cite immediately. We can't wait two or three months for a paper citation. It's unfair for people to have to wait for a vendor to attach a cite.''

West -- unhappy with the criticism and AALL's new position -- continues to insist that court-issued citations are unnecessary and would place an undue financial burden on attorneys and others who need to cite to court documents. The company also argued that if format-neutral citations are adopted, the decision should be up to each jurisdiction, and that parallel citations to print sources should be required.

West, which has long funded judicial retreats and contributed to political campaigns, had enjoyed considerable success in its fight against the new citation system, but last year it confronted a potential adversary its own size -- the American Bar Association (ABA), the country's most prestigious lawyer trade organization. The ABA, concerned about the potential for citation chaos, appointed a special committee to look into the issue, which recommended that a system nearly identical to the one proposed by the AALL be embraced, or . The only substantial difference was the ABA suggested that non-mandatory parallel citations to print sources be allowed during a two-year transition from page-based to medium-neutral citations. The ABA voted to adopt the recommendation in August last year.

That victory -- or defeat, depending on perspective -- was followed by a development of potentially even more significance the following November. In a series of similar court actions, Judge John S. Martin Jr. of the U.S. District Court for the Southern District of New York became the first federal judge to side with opponents of a citation copyright by ruling that West's copyright was invalid benchtr2.htm>. "Where and on what particular pages the text for a court opinion appears does not embody any original creation and it is not, in my opinion, entitled to protection," said Martin in Matthew Bender & Co. and HyperLaw Inc. v. West Publishing Co. "What West is trying to do is create a monopoly in reported decisions," he said.

The judge added salt to West's wounds by ruling last May, after a trial on a related matter, that West may not copyright judicial opinions in its popular reporter series, opening the door for other case law publishers to copy those decisions in their entirety and use them for their own commercial purposes links/hyperlaw.html>. Martin said West's additions to those opinions, amounting to parallel citations and cites to more easily accessible sources, are mechanical and don't contain the necessary level of originality required to merit a copyright monopoly.

"In sum, each of the changes that West makes to the cases it reports are trivial and, taken separately or collectively, they do not result in 'a distinguishable variation' of the opinion written by the court," Judge Martin said.

Yet the war is far from over. Even if West loses the appeal in the circuit court, observers expect the company to seek a reversal from the U.S. Supreme Court. West also is lobbying Congress for laws to protect electronic databases, which would restore its copyrights. In addition, many judges and court staff opposed changing to a new citation standard when the Administrative Office of the U.S. Courts, which oversees the federal judicial system, invited comment on the ABA proposal earlier this year . But even if West prevails on a legislative level and marshals support from within the judiciary, the Internet increasingly is looking like an unstoppable force, which may reduce West's struggle to a futile effort to plug leaks as the dike crumbles around them.

"The need to have a unique citation system will continue to be an issue, especially as electronic use increases," said Rita Reusch, director of the University of Utah Law Library and a member of the AALL citations committee. "The page citation will be an anomaly, and that will force the issue."

James Evans is the author of "Law on the Net" and "Government on the Net," guides to online legal and government resources from Nolo Press. E-mail: .

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