Nothing succeeds like access? Debating the merits of a public domain citation system.
By Erik J. Heels
First published 1/1/1995; Student Lawyer magazine, “Online” column; publisher: American Bar Association
For students at most law schools, access to the Lexis and Westlaw Computer-Assisted Legal Research (CALR) systems–and to the Internet–is free (or at least the reduced cost is hidden in tuition charges). But in the real world, accessing these systems is expensive. While medium and large law firms can afford to pass these costs along to their clients, small law firms cannot. Individual citizens, including pro se litigants, do not even have access to CALR.
But new technologies–CD-ROM and the Internet in particular–are reducing the cost of publishing, and a proposed public-domain citation system may replace West Publishing Company’s privately owned citation system as the de facto national standard. Will the result be lower cost, more confusion, neither, or both?
In October, 100 individuals representing the Department of Justice (DOJ), legal publishing companies, practicing members of the bar, and legal educators met in two sessions to discuss the merits of a proposed public-domain case citation system. The meeting took place at the Washington, D.C., offices of the Taxpayer Assets Project (TAP), who also sponsored the meeting. The morning session lasted about three hours, and all were given a chance to be heard. The afternoon session was before DOJ officials, and each organization was allowed three minutes to speak. (While DOJ officials were at the meeting, the DOJ was not an official sponsor of the meeting.)
After the meeting, Erik spoke with three of those who attended: TAP Director James Love (firstname.lastname@example.org); Monica Yunag, director of editorial standards at Mead Data Central (email@example.com); and Jim Schatz, from Schatz, Paquin, Lockridge, Grindal & Holstein, outside counsel for West Publishing Company. Their views on the issues raised by a public-domain citation system provide insight on the future of legal publishing.
TAP, the organizer of the meeting, is part of the Center for Responsive Law, and was founded in 1988 by Ralph Nader. TAP works on such issues as taxpayer-funded drug research, royalty-free mining on public lands, and access to government information. TAP was involved in getting the Security and Exchange Commission’s EDGAR database on the Internet and has also worked to get the Government Printing Office to make its information available on the Internet. Largely as a result of TAP’s persistence, the DOJ Antitrust Division recently began an investigation into the CALR market.
The problem with the CALR market, according to TAP and West’s competitors, is that West dominates the field by copyrighting its page-specific citations. And since every state uses books from West’s National Reporter series (such as S.Ct., F.Supp., A.2d, and P.2d), nobody can compete with West. West’s claim that its page-specific citations are copyrightable was strengthened by West’s victory in West Publishing Co. v. Mead Data Central, 799 F.2d 1219 (8th Cir. 1986). Mead Data Central had wanted to be able to cite to West’s Reporters on its Lexis CALR system. West and Mead Data Central eventually settled the case out of court before the Supreme Court could rule on the question. The terms of the settlement agreement are confidential, but no doubt Mead Data Central agreed to pay licensing fees to West, an agreement which is binding on Reed Elsevier, the new owners of Mead Data Central. A public-domain citation system–one that does not rely on volume and page numbers of a book owned by a private publisher–has the potential to increase access to case law while decreasing the cost of access.
To decide or not to decide
The morning session focused largely on whether there is, in fact, a problem. Jim Schatz, outside counsel for West, suggested that the proposed solution to the problem–if there is a problem–may have the opposite result from what was intended. “This is an effort by a group of competitors,” said Schatz, “to essentially try to eliminate all competition among legal citation systems.” West urged caution, while its competitors pushed for change. Said Mead Date Central’s Monica Yunag, “West would want us to think that this is a new idea and that we’re moving too quickly. But it’s not a new idea.” Yunag pointed out that Lexis adopted its own citation system in 1987. West has a similar system for Westlaw, and both Lexis and Westlaw include court-assigned docket numbers, which are already in the public domain.
The afternoon session was essentially an information session for the DOJ officials, although it is not clear what role, if any, the DOJ will play in establishing a standardized public-domain citation system. Ultimately, the decision is for the judiciary, as any system would have to be implemented via court-made rules of procedure.
The DOJ could certainly suggest that judges adopt a new system, but many judges may decide to do nothing. According to Yunag, “the decision makers–the judges–probably are not well-versed in the pros and cons of the debate, and because they have been used to a particular system, they resist change.”
Disadvantages of any new system include increased workload for–and increased cost to–the judiciary. While court clerks are already managing case law (assigning docket numbers, writing options, managing BBSs, etc.), nobody can say for sure just how much extra work will be required. Yunag agreed that there would be costs associated with the proposed system, and she said the challenge for courts would be to work smarter with their existing resources.
The resolution of the problem depends primarily on three things. First, whether West’s copyright of its page-specific citations will be challenged in court. Second, whether a standardized public-domain citation system will be established. Third, whether the judiciary will act on the matter.
1. Escape from West. One solution to the problem could be for West’s copyrighted citations to be ruled uncopyrightable. West could be challenged in court by either the Justice Department in an antitrust action or by a legal publisher. The DOJ, which does not comment on pending investigations, may have a tough antitrust argument to make, considering that in 1992 there were 65 legal publishers with 200 titles, and in 1994 there are 200 legal publishers with 500 titles.
A legal publisher’s case would also be difficult, but it might be strengthened by Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991), a case that was decided after West v. Mead. The Feist court held that sweat-of-the-brow copyright is not protected under the Copyright Act, and that the nonexpressive arrangement of names in a phone book was not copyrightable. Feist certainly does not define just how much is required for a compilation to be copyrightable, but West believes they clearly have enough. “I think Feist affirms West v. Mead,” notes Schatz. Ultimately, it may take the Supreme Court to decide. “It’s conceivable,” says Love, “that some publisher will be able to spend the hundreds and thousands of dollars and the years necessary to get a Feist decision out of the Supreme Court, which will decide once and for all whether the West page numbers are copyrightable.” If the West citations were declared to be noncopyrightable and public domain, would Mead Data Central be the only one that had to pay (based on its settlement agreement) to use them?
Mead and other legal publishers, of course, would rather not pay licensing fees to West. According to Love, “West made it clear that they would license the page numbers,” but when pressed on the issue, West said that they had never done so for a non-Fortune 500 company. West’s response was that the smaller publishers had never asked for a license. “West has never turned down anyone for a license,” says Schatz. In fact, widely available low-cost licenses may be the key to West’s future. The acceptance of Dolby noise-reduction circuitry as an industry standard, for example, was due to Mr. Dolby making inexpensive licenses available.
One small publisher, HyperLaw, a New York-based publisher of Federal appeals decisions on CD-ROM, is challenging West in court. (Matthew Bender v. West (SD NY 1994). But HyperLaw joined the case as an intervener, and all indications are that Matthew Bender–the deep-pocketed plaintiff with the resources to push the issue–will settle with West, leaving HyperLaw on its own. Love, though, remains convinced that change is inevitable: “It’s not like we’ll be entering the year 2000 with West holding the monopoly on the citation system.”
2. Escape to Wisconsin. A second solution to the problem could be for a standardized public-domain citation system to be established. Currently, different standards have been proposed by Wisconsin and Colorado, a new system is being tested by the 6th Circuit, and a new docket-number-based system has been implemented in Louisiana. Also, the American Association of Law Librarians is working on a proposal, and the ABA Science and Technology Section, Judicial Electronic Dissemination of Information (EDI) Committee, is studying the matter. It would not be unmanageable to have a different standard for each jurisdiction, but some level of standardization would make the lives of legal researchers easier. The Bluebook is already more than 300 pages long!
Any new standard will probably look like Wisconsin’s proposed system. “The Wisconsin system seemed to get the biggest endorsement,” says Love. Wisconsin is proposing a citation system that would include the year of decision, court, sequential case number, and paragraph number. If Wisconsin implements its proposal, Wisconsin cites, starting in 1996, would look like: 1996 Wis. App. 235, 15. (Today, a Wisconsin Court of Appeals decision would look like: 185 Wis. 2d 4, 17 (1994).)
3. Status Quo. A third solution to the problem could be to stick to the status quo. Eighty-five percent of all legal research is conducted the old-fashioned way: with books. The standardized public-domain citation system has been proposed, debated, supported, and studied primarily by those with access to–and a vested interest in–electronic publishing systems. Do TAP’s views reflect those of the legal profession? The White House is a “taxpayer asset,” but does the government have to bus each citizen there for the free tour? Is the ABA Science and Technology Section an accurate cross-section of interested members of the practicing bar? Do CD-ROM publishers care about the availability of books in public law libraries? We pose these questions not to suggest their answers, but to encourage the reader to consider the varied interests of those contributing to this debate.
There is evidence to suggest that the practicing bar is opposed to any change. Says Schatz, “The practitioners that spoke up didn’t understand why this was being done and thought it would be a disaster.” Also, the Association of Reporters of Judicial Decisions–which consists essentially of the 20 or so states, including New York and California, that publish their own official reporters–unanimously passed a resolution opposing any change.
The proposed system also has real problems associated with it, some bigger than others. Managing the huge volume of cases appears to be the biggest problem. For example, in the U.S. district courts, there are abut 700,000 decisions per year. Of those, West reports about 1 percent in its books and about 2 percent on Westlaw. Westlaw and Lexis each have about four million cases online. If a publisher wanted to include just U.S. district court cases in an online database, the database would equal the current size of Lexis and Westlaw in just six years. If the publisher wanted to include all U.S. case law, the database would equal the current size of Lexis and Westlaw in just two years. Managing the huge volume of U.S. case law and selecting cases for publication is a daunting task, one that West has done well for years.
There is also the possibility that a closed citation system–one, like Wisconsin’s, that would require a cite only to the public-domain citation to the exclusion of all other citations–would convey less information to the reader. In a library that contains only West’s North Western Reporter, how does one find the case identified as 1996 Wis. App. 235? If the public domain citation is the only citation available to the reader, some sort of cross-reference, perhaps another (new?) book, is needed. “West believes in an open citation system where people can cite to wherever they want,” says Schatz. West seems less concerned about the possibility of a standardized public-domain citation system than it does about such a system that excludes its own citations.
The role of the Internet
Is the presence of free government information on the Internet a threat to commercial CALR providers? In 1993, California passed a law that required the state to make its governmental information available on the Internet. New Jersey is currently considering similar legislation, as are other states. Lexis and Westlaw are getting established on the Internet, and West has made its Legal Directory available for free on the Internet.
Yunag is optimistic about the Internet. “We don’t view the Internet as a threat. We view it as an opportunity–as another distribution channel, one to which we can bring our value-added products.”
Schatz also views the Internet as an opportunity while expressing little concern over competition from governmental agencies. “Those public systems aren’t very user friendly and won’t be very user friendly,” says Schatz, “and as a result they probably won’t be used by people who need access to the information on a daily basis.”
The Internet’s biggest strength is its role as a forum for discussion. A listserv list set up by TAP enabled the participants of the October meeting to discuss the issues online beforehand. “The Internet allowed us to democratically debate this topic. When we went into the room,” says Love, “everyone already knew what was going on.”
In addition for providing a forum for discussion, the Internet may yet provide a viable means for doing legal research. But standards are needed, perhaps via the Request For Comments (RFC) process. For example, in Westlaw and Lexis, a user can enter Boolean search strings. How does one do this on the Internet? One way would be to use Gopher as a starting point and to do the search with VERONICA. In this case, the Gopher User Display String (UDS) (the 70 or so characters in a Gopher menu item that are displayed on the screen) would have to be well-defined. In addition to any public-domain citation string, the UDS could contain the ISO two-letter country code of the case–thus setting the groundwork for an international legal citation system based on Gopher. WWW- and WAIS-based solutions are also possible, but if the Internet is going to become a serious legal research tool, many issues are going to have to be worked out online, and the RFC process–the Internet’s way of setting standards since 1969–is, I believe, the essential way to set the necessary standards.
Each organization represented at the October meeting came to the meeting with its own biases and each left with a different view of where to go from here. Says Love, “It’s about whether West–or any other company–deserves any preferential treatment in terms of publishing the law.” Says Yunag, “Let’s level the playing field and let’s all compete as hard and as best as we can.” If they want to compete, says Schatz, they can “put their citation system out there, make it available to the public, and let it stand the test of the American free market economy.” What is the future of legal publishing? In the short term, various organizations will be pursuing the issue of a standardized public-domain citation system. West’s survival as a legal publisher (especially of books) will not be at risk anytime soon, but West’s dominance of the CALR field may be coming to an end. West can still maintain control of its market share and of the “de facto” national citation standard by aggressively selling licenses, rather than waiting for competitors to buy them. In the long term, the Internet may also become a serious CALR tool. As students, we can contribute to this debate. Remember, the Bluebook was written by students! Want to learn more about the RFC process? Do you have any ideas about the future of legal research? Feel free to contact us on the Internet. It may take a day or so for replies, but all e-mail messages will be answered. See you on the Net!