Sept 95 Level of Govt: State, Federal Function: Courts Problem/situation: Proprietary case law citations have stopped competition in online case law dissemination

Solution: Development of a public-domain reference system

Jurisdiction: New York, Florida, Washington, D.C., Philadelphia, Pa., Atlanta, Ga., Wisconsin, Washington, South Dakota, Louisiana, Colorado, Chicago, Ill

Vendors: West Publishing, Mead Data Central, By Harry Hammitt Special to Government Technology A disagreement over how best to disseminate case law electronically threatens to slow the inevitable evolutionary change from paper to electronic formats. The issue is not about dissemination per se, but about copyright

West Publishing - long the leader in hard-copy case law publishing - has developed a proprietary format, which is now applied to electronic citations as well

But judicial decisions are government information and, at least on the federal level, cannot be copyrighted. West doesn't claim a copyright on the information, but does in the unique way it formats the cases, including page numbering within a decision

Because West's system is the only format universally accepted by courts, any other publisher's system faces an uphill battle. In the mid-1980's, Mead Data Central was involved in litigation with West Publishing, essentially over its ability to use West's pagination system in online opinions disseminated by Lexis. Without the citations, the value of the system was considerably lessened. Mead lost the case, and later entered into a licensing agreement to use West's pagination system

But many smaller publishers - compiling CD-ROM collections of case law - cannot afford licensing fees for West's proprietary citation system

COPYRIGHT LITIGATION Several publishers have taken West to court, trying to break the copyright barrier. At least two district court cases, Matthew Bender and Hyperlaw v

West Publishing (U.S. District Court for the Southern District of New York) and Oasis Publishing Co. v. West Publishing (U.S. District Court for the Southern District of Florida), are currently being litigated around these copyright issues. West is also involved in a Freedom of Information Act (FOIA) case in Washington, D.C., Tax Analysts v. Dept. of Justice, centering on access to the Justice Department's JURIS database which was maintained under contract by West

Some of these publishers have formed the American Association of Legal Publishers (AALP), which, according to the group, "is dedicated to eliminating the special practices existing in many federal and state courts and agencies which give a single publisher preferential access to government information, in some cases, exclusive access. These practices severely limit price and product competition in legal print publishing and electronic research services." The Justice Department has put enough stock in these criticisms to have launched an antitrust investigation of the entire computer-assisted legal research industry

The AALP has developed what is known as a public citation system - a system for citing cases that is not tied to any publisher - which is based on numbering paragraphs within a decision. Similar systems are being studied by the American Bar Association and the American Association of Law Libraries. In 1992 the Library Program Subcommittee of the Committee on Automation and Technology of the Judicial Conference - the ruling body of the federal judiciary - recommended a public citation system that was voted down by the Conference

OTHER PLAYERS Another group of players are university law libraries, some of whom already maintain databases of all court of appeals decisions in their geographic area. Villanova maintains the decisions of the Third Circuit in Philadelphia, while Emory maintains those of the Eleventh Circuit in Atlanta. Emory has volunteered its services as a repository for all federal decisions. Judge Owen Forrester of the Northern District of Georgia and chair of the technology subcommittee of the Judicial Conference, told the Daily Report for Executives that "it would seem that if a non-profit

Harry Hammitt  |  Contributing Writer