Online Judicial Opinions Need a Public-Domain Format

West Publishing's copyright is hindering electronic dissemination of case law

by / August 31, 1995
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 organization chooses to keep a database online of federal decisions that it would also have the power to assign citations and even number paragraphs

If that happened, I think that would address the core concerns in the present debate." Forrester has shown support for the idea of using Emory as a repository and has pledged to work to convince other members of the Judicial Conference to adopt such a scheme. Both the Sixth Circuit in Cincinnati and the Fourth Circuit in Richmond have recently agreed to go online through Emory. It is likely that other circuits will follow

PAPERWORK REDUCTION West stumbled badly earlier this year when it lost a fight in the House of Representatives Committee on Government Reform and Oversight over a provision it attempted to slip into the Paperwork Reduction Act prohibiting agencies from disclosing records to which a contractor had added value

While West's goal seemed to be to put an end to the Tax Analysts litigation over the JURIS database, its strategy backfired. The provision was so broadly worded that it had serious implications for other records currently available under FOIA and a coalition of groups concerned with information access issues successfully fought to have the provision deleted

Also, Wisconsin recently gave the go-ahead to a vendor-neutral citation system to be used on an experimental basis, and Washington and South Dakota are also thinking of moving toward a public citation system for their cases. Louisiana and Colorado currently use public citation systems

Further, Rep. Barney Frank (D-Mass) has introduced a bill that would prohibit federal courts from using a citation system subject to any copyright claims

BULLETIN BOARDS A final piece of the puzzle has to do with the availability of electronic bulletin boards now being used by many federal appeals courts and some district courts, as well as courts on the state level. The Judicial Conference voted in the spring to adopt a 75 cents per minute access charge for online use of bulletin boards. Both Chief Judge Richard Posner of the Seventh Circuit in Chicago and Chief Judge Gerald Tjoflat of the Eleventh Circuit in Atlanta have argued that the cost of the boards is negligible

Posner noted that "charging a fee for this previously free public information amounts to a confiscatory tax on public information." Both Posner and Tjoflat argued that the savings realized in more efficient use of staff time were so great in comparison with the costs that the bulletin boards should remain free. Although it is not clear if the decision of the Judicial Conference is permissive or mandatory, the fees represent a significant cost - particularly for small firms or solo practitioners, journalists, researchers and average citizens

Time no longer appears to be on West's side and the company may well have to make its peace with the whole issue of online access and be content to remain a major player in an open marketplace. But as more and more opinions are put up on local bulletin boards by courts and the bulletin boards become the retrieval mode of choice, the judiciary as a whole will need to take a good long look at its dissemination and pricing policies. Setting prices too high may upset the marketplace before it has time to grow

Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues

Harry Hammitt Contributing Writer