Fun_People Archive
30 Sep
Who owns the law?

Date: Fri, 30 Sep 94 02:08:05 PDT
To: Fun_People
Subject: Who owns the law?

Forwarded-by: bostic@CS.Berkeley.EDU (Keith Bostic)
Forwarded-by: Wendell Craig Baker <wbaker@splat.baker.com>

Gary Wolf's article ``Who Owns the Law'' appeared in Wired
2.05 (May '94).  

******************************************************************************
http://www.wired.com/Etext/2.05/features/the.law.html

Who owns the law?
*****************

And you thought you'd heard all the egregious copyright stories. 

By Gary Wolf 

The law... should surely be accessible at all times and to everyone."
	- Franz Kafka

Who owns the law? If you feel a momentary temptation to raise your
hand and chirp, "Hey, this is a democracy; nobody can own the law,"
then you should probably sit tight for a minute and wait for the
impulse to pass. A private database owner has effectively asserted
copyright ownership over thousands of decisions handed down by the
circuit and district courts of the United States. If you want to cite
these decisions in a legal brief, or include these decisions in an
electronic database, you will probably have to traverse this vendor's
copyright. And that means you pay. As they say in New Orleans:
cha-ching!

Of course, the actual words of legal decisions are public domain. They
cannot be copyrighted. What West Publishing of Eagan, Minnesota has
managed to acquire is ownership of the quasi-official page numbers of
federal decisions. Many judges recommend or demand that lawyers
appearing before the court include citations to specific West-owned
publications, such as the Supreme Court Reporter, the Federal
Reporter, Federal Supplement, or Federal Rules Decisions. Under a
copyright claim that has survived at least one challenge in court,
other publishers of legal decisions are not permitted to show, in the
margins of their books or in the headers of their databases, parallel
citations that describe where decisions appear in West-owned books or
in the West-owned electronic database, Westlaw. This puts West in the
catbird seat: Any publisher is free to compile collections of federal
decisions, but without citable page numbers these collections are
little more than worthless.

Naturally, West's competitors are irritated. Small-time legal
publishers are beginning to come out with relatively inexpensive
CD-ROMs containing the historical case law in specific fields, such as
telecommunications, or tax law, or employment law. But when it comes
to the all-important circuit and district courts of the United States,
CD-ROM publishers are holding back, because they can't get access to
the page numbers.

Testifying before Congress last year on behalf of the American
Association of Law Libraries, Laura Gasaway used a striking metaphor
to describe West's tasty data monopoly. "Citations fulfill an
infrastructural role in legal circles which is similar to that of
currency in a modern society," Gasaway said. "Just as the currency
system allows financial transactions to occur, so the system for
citing law materials facilitates information exchanges." In other
words, control over citations equals control over the circulation of
money. In the legal field, West Publishing finds itself in the happy
situation of having a license to print cash.

How did this happen? The text of United States law has been a
profitable commodity for West since the end of the last century, when
the company began collecting court decisions and reproducing them in a
useful, well-arranged format. Many courts came to depend upon West,
along with other private companies, to provide them with the
authoritative text of the law. Over the last decade, paper databases
have begun to be overshadowed by electronic databases, but one of the
things the court system has inherited from the old regime of
paper-based publishing is this dependence on private enterprise to
manage the dissemination of the law. Even government agencies such as
the US Department of Justice purchase access to case law in a
not-so-open market.

In the past, West's dominance in the area of federal case law had
certain advantages.  The task of putting an identical set of legal
source books in hundreds of thousands of law offices would not have
been easily accomplished by a patchy network of small, competing
firms, or by the almost completely decentralized fiefdoms of the
federal judiciary. Print, however, is no longer the ideal medium for a
database, and getting identical case law into the offices of firms
across the country no longer requires a well-organized army of
typesetters, collators, book salespeople, and messengers. Using online
access to simple ASCII files, it ought to be trivial to download
cheap, standard, citable electronic texts of US court decisions from
anywhere in the world.

Technically, it is trivial, but you still can't do it, at least not
cheaply. Although the history of the privatization of the text of the
law is complex, the results are simple. Electronic legal databases are
available to well-heeled firms and law school students, while the
majority of individual users and small businesses cannot gain entry.

Is There No Juris?
==================

James Love is an information activist; he is devoted to liberating
data. By last summer, Love was well aware of the problems with
electronic access to the law. In July of 1993, Love submitted a
petition to Attorney General Janet Reno asking her to allow the
general public entry into a little-known Department of Justice
database called Juris.

Love, the director of a Ralph Nadarite public interest group called
the Taxpayer Assets Project, knew that the obscure database at the
Department of Justice could be the key to unlocking the case law
monopoly. Juris was publicly owned, and it contained a complete
collection of federal case law going back, in some areas, to 1900. If
Love could convince the Department of Justice to open the Juris system
to users outside the government, it would be a milestone on the road
toward information equality. Through Westlaw and its only licensed
competitor, Lexis, users pay $200 to $250 for this sort of
information. Public access to Juris would make it almost free.

Love's effort did not succeed. Six months into his campaign, it was
clear that the public would not get cheap access to Juris. On the
other hand, the locked-out citizens were in good company. By December
31, the Department of Justice didn't have access, either.  The two
dozen or so employees of Juris had been fired or reassigned. The disk
drives were silent. The database was dead. The story of how a campaign
for access to the law resulted in the destruction of the country's
most important publicly owned legal database offers a few clues about
the balance of power in the coming information age.

Juris was created in 1971, two years before Lexis and four years
before Westlaw. It inherited the electronic records of an experimental
Air Force program called FLITE (Finding Legal Information Through
Electronics), whose history goes back to the early '60s. During the
months before it was shut down, Juris was used by about 15,000
government employees.

Unfortunately, back in 1983 the Department of Justice had grown tired
of handling the bothersome data entry and data management tasks for
the case law portion of Juris. In a move consistent with the
Reagan-era emphasis of privatization, a leading database vendor was
hired to take over the job. The vendor was West Publishing. Displaying
a remarkable lack of foresight, the Department of Justice neglected to
secure the right to reclaim their database should West ever decide not
to renew the contract.

Rebecca Finch, the director of Linguistic Data Consortium, a broadly
based group of 65 corporations, universities, and government agencies,
frequently enters into contracts with large private data
vendors. Finch looks back on the Department of Justice's agreement
with scorn. "It was a pretty stupid move to negotiate that kind of
contract," she says. "We have contracts with news wires and other
vendors and sometimes we hear that we have to give the data back when
the contract is over. We just say no. Once we pay for it it is
ours. Usually when we take this stance we get what we are after."

The Justice Department lawyers were not so tough. Starting in 1983,
the case law portion of the Juris database was leased from West with
the understanding that if the data vendor ever withdrew it could take
the case law with it. A decade later, when Love pressed his argument
for open access, West did exactly that. Soon after the department's
budget for the next two years was finalized in Congress, West
announced it was pulling out of Juris.  This left the department with
a gap in its legal records that stretched over ten years.

But West didn't just take the data. They also took their proprietary
page-numbering system. Without a budgetary appropriation to reenter
the missing data, and without confidence that the data, even if
reentered, would be usable to its attorneys, the Department of Justice
had no choice but to shut the system down.

Love says the conflict over legal information is the toughest public
access battle he has ever seen. The details of the controversy are too
complicated for the evening news, and West is probably the most
politically influential data vendor in the country. "I think we will
win," Love predicts, "but it is a question of when. They've been able
to delay this for a long time."

Today, the focus of the public access effort has shifted from lobbying
the Department of Justice to suing it. Although the Juris system is
dead, the case law has not yet been literally erased, and several
Freedom of Information Act (FOIA) requests have been filed asking for
parts of the database. A well-known FOIA attorney, William Debrovir,
is seeking a court injunction forbidding the Department of Justice
from deleting the valuable records until the FOIA requests are
resolved.

"There is now no question that machine-readable data are agency
records and are subject to FOIA," argues Debrovir. Still, the
attorney, who represents not Love's group but another database
publisher called Tax Analysts, was probably not surprised to learn
recently that his FOIA request had been rejected on a number different
grounds, including the unashamed acknowledgement that making the legal
data public would hurt West's private market. Harming West's market is
clearly not something the Department of Justice is prepared to
do. Debrovir's FOIA is on appeal.

All the legal back and forth between West, William Debrovir, James
Love, and the Department of Justice has left a few people hoping that
Juris, in one form or another, will be revived. But even if the data
is saved, the page numbers will still belong to West. Unless West is
moved by a fit of altruism to give up its lucrative copyright, the
well-guarded barrier at the entrance to the law will remain in place.

West's Role
===========

A fit of altruism may not be entirely out of the question. West's
copyright of the page numbers of federal case law has brought small
sudden squall of hostile publicity upon the company, which is not used
to being cast in the role of corporate evil-doer. Last year, Congress
undertook hearings on the page-number issue, and during the latter
part of 1993, legal librarians, computer researchers, and small
publishers jumped at the chance to attack West's monopoly.

Rebecca Finch points out that a whole generation of computer-assisted
legal research has been stymied by a lack of available data. Under
Finch's guidance, the Linguistic Data Consortium helps computer
scientists gain access to large databases in order to developed
advanced electronic search techniques. "We're getting multilingual
text, news wire text, medical text; but the problem with legal data is
that it is copyrighted," she says.

One of the seminal researchers in the area of computerized database
tools, Carole Hafner, was forced to give up her work on case law
because she could not get any of the raw material. Hafner, whose
highly technical 1981 book, An Information Retrieval System Based on a
Computer Model of Legal Knowledge, helped define the field, now
studies biological and medical data. "All this research has been
stalled all over the world because nobody can get any legal text,"
Hafner complains. "The research effort, the fundamental research on
case law and databases has been brought to a standstill because of the
fact that these companies will not share their data with
researchers. They will not sell their data. They will not sell a
tape. You can forget it."

Hafner's characterization is not entirely correct; there is highly
advanced database research going on in at least one location: West
Publishing. One of West's in-house computer scientists, James Olson,
has designed a natural language search tool called West Is Natural
(WIN), which even Hafner admires. "WIN is great, everything about it
is great," she says, "but the problem is there's no competition."
Hafner points out that there is tremendous debate today over the best
way to access a database; semantic nets, formal logic, and neural net
approaches all have their advocates. "All these people should have a
chance to work on legal text," Hafner argues. "Legal text may have
some unique characteristics, but nobody knows because we've never been
able to study it."

Despite the vociferous criticism from West's rivals and competitors,
Congress declined to pass a law disallowing the copyright on page
numbers. While West's formidable political influence may have played a
role in the decision, a more important factor was the ambivalence of
other data vendors on the page-numbering issue. Competing publishers
would enjoy being able to undermine the West monopoly, but at the same
time the largest players in the information industry realize that all
sorts of copyrighted compilations of public data could be at risk if
Congress passes a law stating that page numbers cannot be protected.

After all, when you choose a particular portion of the public record
and put it into electronic format, what keeps the next guy from coming
along and ripping it off? West argues that it selects and edits the
cases it publishes, and points to its page numbers as the unique
signposts of the way it has decided to arrange the data. Get rid of
the signposts, says West, and the information landscape becomes the
site of a bloody free-for-all.

Interestingly, West's copyright of the page numbers of federal case
law has never received a full airing in court. In 1985, Mead Data
Central, West's main electronic competitor attempted to use the West
page numbers in its own legal database, Lexis. In a preliminary
injunction, the 8th US Circuit Court of Appeals upheld West's
copyright, and West and Mead eventually signed a secret agreement that
granted Mead a limited license to use the numbers. Widespread
speculation holds that this agreement forbids Lexis to include the
page numbers in CD-ROMs and other electronic formats.  Meanwhile,
West's provisional victory has kept other electronic publishers at
bay.

The apparent disinclination in Congress to outlaw copyrighted page
numbers has led West critics to mount a slightly different
attack. Many US courts offer electronic copies of their decisions via
local bulletin board systems; the decisions are not organized into a
database, but they are inexpensive and available to everyone. Why not
just stick official, publicly owned page numbers on them? If there
were a consistent page-numbering system acceptable in all
jurisdictions, any publishing company could pull the decisions into a
database and compete with West on the bases of who provided the
easiest and cheapest way to access the law. Various proposals for a
page-numbering system have been wandering around the Administrative
Offices of the US Court of Appeals for more than a year, but for one
reason or another none of them have "stuck."

To the anti-Westites, the court system's failure to promulgate a
simple, standard, public-domain citation system for US case law
indicates a condition of advanced backbone-enfeeblement. "The courts
have lost their moral compass," says Alan Sugarman, whose company,
Hyperlaw, produces CD-ROMs of legal data. Sugarman points out that the
US Courts have only two jobs: They resolve individual disputes and
they publish their decisions as guidance for everybody else to
follow. The fact that these decisions lack citable page numbers puts
Sugarman into a state of voluble outrage. "We are talking about the
law, here!" he says. "We're not talking about a by-product.
Publishing cases for people to cite is one of their primary jobs. So,
why don't they take some of their budget and spend it to get their
materials into an authoritative form?"

As for West, it holds that the page-number issue is a tempest in a
teapot. Gerry Sikorski, West's spokesperson on the Juris and
page-numbering issues, says that West would not oppose the idea of a
standard, nonproprietary electronic-numbering system. "We have never
asked a court to embrace our citation system," he insists.

Still, Sikorski is quick to point out what he perceives as the
inevitable problems with public-domain page numbers. "The question you
have to ask is, what's broken?" he suggests. If the government were to
try to put standard page numbers on court decisions, Sikorski believes
that "there would be a lot of expense, a lot of disruption, and it
won't lead to anything more than a lot of taxpayers, citizens, and
legal writers and readers going through a lot of gymnastics." Still,
West's spokesperson shrugs, "If somebody proposes something good, then
what the heck?"

West's problem - and, of course, it's palladium - is that the
privately held company is intimately entangled with the federal
judiciary. Bad publicity could be deadly for a firm that depends on
the goodwill of courts and judges to maintain its position as the
bearer of the standard text of the law. West goes to great lengths to
enhance this relationship. The company sponsors yearly cash gifts of
$15,000 to federal judges (an independent judicial panel, not West,
decides who shall receive the prizes), and West has been known to work
closely with judges in order to insure accuracy in published
decisions. The judges are reluctant to lose the help of a good friend,
and West's role is explicitly acknowledged in a number of
jurisdictions.

At the same time, West needs to aggressively resist the implication
that it has any special or unfair relationship with the
judiciary. When West's president defended his company before Congress
last year, he went through various jurisdictions one by one, arguing
out that "there is no problem with access." Other publishers, he said,
"are as free as we are to publish their own compilations" of legal
material.

In its attempt to publicly downplay its position, West resembles a
company that wants to have its cake and eat it too. West insists that
it is the best and most popular legal publisher, and it is constantly
assuring its customers that it can provide them with the standard
text.  On the other hand, it is also being forced to argue that it
doesn't do anything any other publisher couldn't do. West's motto is
"Forever Associated with the Practice of Law."  This seems true; there
is no other publisher whose copyrighted arrangements are as essential
to attorneys as are West's. But maintaining this role for eternity -
or even for another decade - has begun, paradoxically, to require
certain efforts to protect and even to conceal it.

West's involvement in government does not begin and end with giving
cash prizes to judges. Vance Opperman, West's president, is a leading
Democratic party fund-raiser who has what a Minnesota newspaper called
"hard-wired connections" to Vice President Al Gore. He is also finance
chairman for the 1994 re-election bid of California Senator Dianne
Feinstein. West may be standing on an ever-narrowing border between
private enterprise and public service, but this border coincides with
the territory occupied by the current administration. A politically
progressive baby boomer, Opperman once told an interviewer that he
listens to Bob Dylan's "Blowin' In the Wind" nearly every day.

Gerry Sikorski, West's spokesperson, is a retired Democratic member of
Congress from Minnesota. Sikorski insists that West's role in the US
judicial system is a benevolent and democratizing one. "West provided
legal documents that weren't provided elsewhere, that weren't
preserved or collected or put together," Sikorski says. "These
documents are an important part of our democratic legal structure."

Again, though, West finds itself on ever narrowing ground. The company
believes access to these documents is important, but it doesn't
believe it is important enough for the government to put them online
with public-domain page numbers. "Nobody is standing in the way of
that," says Sikorski, "but are you willing to pay the money that will
cost? Is it a better use than keeping criminals off the street or
having more judges?"

In defending West's decision to sabotage Juris, Sikorski points to the
growing need to "clarify" the conflict between public data in its raw
form and public data that has been transformed by editing into private
property. As the online resources grow more common, this conflict will
intensify. Even James Love agrees that Juris was a bad mix; the case
law was in the public domain, but the page numbers and headnotes
belonged to West. "We feel very strongly that in this day of
information superhighways, the concept of intellectual property is
critical to success," says Sikorski. "This mixture of data complicates
things."  By turning off the main publicly owned database of case law,
West found an effective way to eliminate the source of confusion. As
for the Department of Justice employees, they are now free to purchase
their case law from what Sikorski calls a "better, more useful, more
advanced system." In other words, they can access Westlaw.

Sikorski asserts that the chorus of complaints aimed at West by Juris
advocates is simply the carping of jealous rivals. After all, he says,
it was West who more than a hundred years ago won the important legal
battles that earned private companies the right to reprint court
decisions, thus opening up the world of legal publishing to private
enterprise.  Today, he says, West's preeminent position is based
almost entirely on its high-quality editing and its detailed headnotes
that summarize and catalog the decisions. James Love and Alan Sugarman
and other public access advocates "want West to do the work and then
strip off the book covers and the spines and republish it."

In conversations with attorneys with no ties either to West or to the
Taxpayers Assets Project, however, few agreed that West's great virtue
was its editing or its notes. Most said that West's value lay in its
completeness and its citability. Mike Rushford, president of the
Criminal Justice Foundation, a conservative group that regularly files
briefs with the Supreme Court, had one of the more explicit responses.

"That's bullshit," he said. "It is not editing or the headnotes, it is
the page numbering." As head of a public interest law firm, Rushford
is constantly looking for ways to save money.  He regularly asks his
attorneys if they could substitute legal data on CD-ROM for West's
high-priced database and law books. "My legal staff says we can't cite
to them," Rushford reports, "so we are going to have to buy the West
books, too. It is just a matter of practical concern. We have to make
a judgement about what the courts will want." When you are filing a
brief before the Supreme Court, Rushford points out, the last thing
you want to worry about is whether your citation is acceptable.

In a sense, the West monopoly represents a classic economic logjam:
Old property relations interfere with new technologies. Just as feudal
relationships in the early modern era restrained, for better or worse,
the development of a capitalist economy, so the outdated notion of
copyrightable data monopolies obstructs new forms of commerce built
upon widespread electronic access to basic information. If the text of
the law were free, or nearly free, companies would be dueling with
each other to see who could add the most value to the data. The
competition would then genuinely be over search tools, interfaces, and
commentary rather than over page numbers and citability.

All West's opponents have a slightly different vision of the what this
future will look like.  James Love looks forward to a day when any
citizen can access a legal database for free at a local library. Alan
Sugarman hopes to be one of the publishers selling inexpensive and
highly-focused CD-ROMs to specialty law firms. And Carole Hafner
believes that if the legal text was available to computer scientists,
in ten or fifteen years the need for headnotes and indexes might be
eliminated altogether; lawyers and non-lawyers could query the law in
a vast number of user-friendly and technologically distinct ways.

Still, it's impossible not to sympathize at least a little with West's
uncomfortable situation.  The company's importance is indisputable;
its history is impressive. "West has performed a democratic role since
the 19th century," says Sikorski, truthfully. Ironically, like the old
AT&T/Bell Telephone system, West may simply have been too successful
at making itself indispensable.

Bonus Offer: Build Your Own Legal Database
==========================================

Many courts today offer their decisions via modem. The Administrative
Office of the US Court of Appeals in Washington, DC offers a list of
these bulletin boards. A few key strokes in your communications
software and you can have a script that dials these boards nightly and
loads the decisions onto your hard drive. Then, when the government
finally decides to establish a nonproprietary citation standard, you
can get into the law-keeping business yourself. A few warnings,
however. The text of decisions on court bulletin boards are often not
the final corrected text as it appears in the bound volumes published
by West and others. Unfortunately, until the government takes better
control of its online data, you could be stocking your system with
incomplete or incorrect case law.  Also, not all jurisdictions are
equally conscientious about posting decisions and corrections. So,
you'll have to call the clerk and make sure you've got them
all. Finally, many courts have decided to charge money for access to
electronic decisions. The going rate seems to be about US$1 per
minute. The US Circuit Court boards are free, however.  Maybe you
should start with this list of numbers, data only: (If you are
prompted for a password, type: bbs is Macbinary.)


	 1st Circuit +1 (617) 223 4640
	 2nd Circuit +1 (212) 385 6003
	 3rd Circuit +1 (215) 597 1871
	 4th Circuit +1 (804) 771 2028
	 5th Circuit +1 (504) 589 6850
	 6th Circuit +1 (513) 684 2842
	 7th Circuit +1 (312) 435 5560
	 8th Circuit +1 (314) 539 3576
	 9th Circuit +1 (415) 744 9020
	10th Circuit +1 (303) 844 3222
	11th Circuit +1 (404) 730 9600
	District of Columbia +1 (202) 219 9589
			      +1 (202) 273 0269



Gary Wolf (gwolf@well.sf.ca.us) is a freelance writer based in San
Francisco.

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Last Modified: 04:54:21 AM - May 24, 1994 PST www@wired.com

© 1994 Peter Langston