roundtable: Re: Court Information-$.75 minute-Mar. 29 Senate Hearing (fwd)

roundtable: Re: Court Information/$.75 minute/Mar. 29 Senate Hearing (fwd)

Re: Court Information/$.75 minute/Mar. 29 Senate Hearing (fwd)

Schatz Paquin (splgh@PrimeNet.Com)
Fri, 24 Mar 1995 18:21:20 -0700 

Date: Fri, 24 Mar 1995 18:21:20 -0700
Message-Id: <199503250121.SAA02833@mailhost.primenet.com>
To: com-priv@psi.com
From: splgh@PrimeNet.Com (Schatz Paquin)
Subject: Re: Court Information/$.75 minute/Mar. 29 Senate Hearing (fwd)


On 3/22/95, James Love posted a message relating to a renewed demand 
that someone create a government-owned database of court opinions.  The 
message was linked to a hearing to be held on March 29, 1995;  and 
included a copy of a letter Mr. Love sent to Senator Phil Gramm of Texas, 
dated March 22.

The following statement (referenced attachments omitted) reflects West
Publishing's concerns regarding Jamie Love's March 22 letter:

     The TAP letter, which purports to raise legitimate concerns over 
the public's access to the law, is in reality part of an ongoing campaign 
by TAP to misrepresent and demonize West Publishing Company -- this 
nation's leading American-owned legal publisher -- before Congress and 
the news media. (National Public Radio, after broadcasting parts of an 
interview with Mr. Love during which he made a number of similar false 
statements about West and the legal publishing industry, issued an 
unprecedented correction and apology during its February 16 Morning 
Edition program.  The text is attached.) 

     TAP's ultimate goal in denigrating West, as this letter will detail, 
is the taxpayer-funded nationalization of America's healthy and 
competitive private sector legal publishing industry.  

     At a time when Americans are demanding that unnecessary government 
spending be eliminated, and government interference in free enterprise 
restrained, TAP is advocating the establishment of a new "Federal 
Department of Legal Information," costing hundreds of millions of 
dollars and replicating services already available at reasonable cost 
by scores of private sector legal publishers.  

     Specifically, TAP advocates a system in which federal bureaucrats 
will establish and control the means to accessing all legal information 
by imposing an "official", government-mandated citation system -- as 
well as the availability and contents of legal information by means of 
a taxpayer funded database containing the "official" text (and perhaps 
a government-approved interpretation and analysis) of millions of court 
opinions dating back to the beginning of America's history.  

     On September 2, 1994, the Justice Department issued a press release
announcing its intention to study such a citation/database system.  But
after intense editorial criticism (examples attached), over 20,000 
citizen letters against it, and numerous letters (examples attached) from 
both Republican and Democratic members of the Senate and House demanding 
answers to a host of questions about the proposal's constitutionality, 
cost, necessity and feasibility, the DOJ informed Chairman Hatch on 
February 10 that the Department was dropping the idea.  

     TAP, apparently undaunted by the fact that this kind of initiative 
has been rejected by the U.S. Judicial Conference (1992), the U.S. House 
(H.R. 4427), and the U.S. Department of Justice, is now attempting to 
enlist members of the Senate Appropriations Committee in their raid on 
the public treasury. It is especially incredible they would do this as 
the committee is attempting to cut billions of dollars in rescissions 
and hundreds of billions of dollars to balance the federal budget by 2002.

     With this background, several false and misleading statements in 
Mr. Love's letter must be corrected:

1.  "West Publishing...is fighting to prevent a revolution in public 
access to legal information."

In fact, West has led the fight for public access to the law and 
government information in America for almost 120 years.  It pioneered and 
is constantly perfecting a system of accessing and researching legal 
information that provides Americans with access to their laws that is 
unprecedented for any society in the history of the world.  West has 
expended considerable resources to ensure that public information is 
indeed accessible to the public.

In addition to its National Reporter System, which chronicles, analyzes 
and cross references some 200 years of American case law, West is 
responsible for revolutionary developments in access technology.  For 
example, in the mid-1980's, West pioneered use of inexpensive CD-ROM 
technology to promote access to the law.  WESTLAW, West's online legal 
and news information service, is one of the largest databases of 
information on the fast emerging Global Information Infrastructure. 
Moreover, West's new, voice-activated retrieval feature for its natural 
language breakthrough WIN (or "West is Natural"), allows anyone -- lawyer 
or non-lawyer -- to use WESTLAW with simple verbal commands and questions.

2.  "West Publishing claims that no one can copy the text of court 
opinions which it publishes because of the West `value added' 
enhancements, such as corrections to grammar."

Here, Mr. Love combines two false statements with a gross 
misrepresentation.

First, West does not publish merely the text of court opinions.  West
publishes complex, value-added compilations of court decisions. (See 
point three).

Second, the "texts of court opinions," as Mr. Love well knows, are in the
public domain and non-copyrightable.  In fact, West's business is grounded
in the continued unfettered public access to those texts.  West has fought
this fight for public access longer and harder than Mr. Love ever has or
ever will.

Third, West's copyrighted compilations of reports go far beyond correction
of simple grammatical errors.  Minnesota Congressman Jim Ramstad put this
very well in his recent letter to Speaker Gingrich:

"TAP greatly understates West's editorial efforts.  For instance, in
addition to selecting about 15,000 cases per year to report on its 
WESTLAW online service -- out of some 700,000 annual dispositions in 
U.S. District Court and Bankruptcy Courts -- West converts those cases 
into clean electronic type, verifies, edits and corrects the slip 
opinions received from the courts, adds mnemonics, selected parallel 
and alternative citations, adds selected editorial material, adds other 
selected information and arranges all of the foregoing into its own 
original case report format.  I have toured West and watched this 
process.  It is complicated, painstaking and exacting work undertaken 
by talented, dedicated employees."

3.  "West Publishing claims that it `owns' the citations to a century of
published caselaw."

Mr. Love, in an apparent effort to confuse those who do not practice and
work with the law, constantly mixes exact terms like "citation," "page
number," "pinpoint citation," and "compilation" to suit his purposes.  
This is an excellent example.  

In truth, West permits anyone, including its competitors, to make ordinary 
use of its citations at no charge.  Again, West holds copyright only to 
its compilations -- reports of court opinions which contain much value-
added editing and editorial content.

Moreover, West's citation system is only one of literally thousands of
suggested citation formats and rules contained in the 15th edition of 
the well-known Harvard Bluebook.

TAP advocates a new, "official" citation system primarily as a means to
advance establishment of a taxpayer-funded legal database.  Without that
database, the proposed citation system is useless because there is no 
body of information to which to cite.

The complexity and expense such a citation system would add to legal
research and writing is enormous -- requiring a long and, for these
purposes, separate discussion.

4.  "A 1991 proposal by the Administrative Office of the Courts to create 
a public database of opinions and a public domain citation system was 
defeated by the Judicial Conference in 1992 after West lobbied against 
the provision.  As a result, public access to information from the courts 
is highly fragmented..."

Again, Mr. Love mixes and links two false statements.  The Judicial
Conference defeated a different proposal after exhaustive examination 
found that it would be burdensome to the courts, expensive for taxpayers 
and generally unnecessary.

Public access to legal information, far from being "fragmented," is 
abundant and growing as fast as the legal publishing industry itself. 
Specifically:

*  Today, there are approximately 175 competing providers of caselaw
producing at least 700 different caselaw publications -- a 250% increase 
in the number of providers and a 350%+ increase in caselaw 
publications -- in just a little over two years.

In addition to a wide variety of legal information products available 
on Internet and on private services like WESTLAW and LEXIS, Infosources 
Publishing's Directory of law-Related CD-ROMS reports that CD-ROM titles 
in the fields of law, legislation or regulation have increased by almost 
300% since 1992.  The 1995 edition lists over 700 law-related CD-ROMS.

*  West's case report publications are available, usually for free, 
at over 3600 law libraries.  And a vast amount of legal information is 
available at some 32,600 public, municipal and specialty libraries 
across the country.

5.  "Progress on the Internet has been slow..."

That would be news to Don MacLeod, who publishes THE INTERNET GUIDE FOR 
THE LEGAL RESEARCHER, available by mail for $50.00.  A recent ad for the
publication described it as:

"A how-to guide to locating and retrieving FREE and fee-based legal
information on the Internet:  Electronic mail, Listservs, law-oriented 
news groups, gateways to other services, Gophers, Telnet, Law-oriented 
WAIS resources, using World-Wide Web to find legal information.

"It covers...Federal agency materials, Executive documents, Judicial
decisions, legislative materials, detailed explanation of SEC EDGAR 
document retrieval, Miscellaneous legal resources."

     Finally, on to Mr. Love's assertion that "Congress should require 
the federal courts to create a public domain citation system and a public 
domain database of court opinions..."

     West's position on the database issue is clear:  West strongly 
supports public access and electronic bulletin boards.  

     With respect to the fee issue, the Information Industry Association 
(IIA), representing several hundred content provider companies, supports 
of the principles of OMB Circular A-130, which establishes fees for 
government information at the cost of its provision.

     But West joins many other legal publishers in opposing an expensive
taxpayer-funded government program to replicate legal information 
databases already available from the private sector.  

     How expensive would such a project be?  West has worked for 120 
years to be profitable and efficient.  And West estimates that its 
private sector cost of just converting the over 3 million cases it has 
published from slip opinion to electronic type would be roughly $140 
million.

     That does not include adding mnemonics to support software, the 
programming costs, hardware and operating costs. And doesn't begin to 
touch salaries, benefits, buildings and adding millions of cases every 
year to that database.

     Beyond that, envision the success of myriad bureaucracies sifting 
through several million court cases every year, citing them all, 
converting them electronically, maintaining and updating that database, 
and disseminating that information instantly upon request to hundreds  
of thousands of judges, lawyers, legal writers and TAP's wired elite.

     Further, picture with chilling clarity the federal government using 
political criteria to decide which cases are published and which are 
not, and how those cases are analyzed and interpreted.  With that comes 
the cold specter of government investigators perhaps monitoring the use 
of a government database by opposing attorneys in federal cases.

     TAP's database proposal also raises a profound question of access.  
An estimated 85% of America's legal community is still un-wired, 
conducting legal research primarily by the book.  A taxpayer funded 
"official" electronic database and "official" citation system 
automatically leaves those members of the legal community, and their 
clients, out in the cold. The same goes for the computer illiterate,  
the computer-phobic, and the many public libraries unable to budget for 
computer terminals to accommodate the new system.

     Again, West not only supports, but continues to lead the fight for 
public access to the law and to government information in America -- 
essential ingredients of our democracy.  West believes essential to 
that cause is a healthy, diverse and competitive private sector. 

*************************************************
Michael A. Trittipo
Schatz, Paquin, Lockgridge, Grindal & Holstein, P.L.L.P.
(of whom West Publishing Corporation is a client)
splgh@primenet.com
*************************************************

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