UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ In the matter of: ) ) United States of America ) 1401 H Street, NW ) Suite 4000 ) Washington, DC 20530 ) State of California ) State of Connecticut ) State of Illinois ) Commonwealth of Massachusetts ) State of New York ) Civil No. 96-1415 (PLF) State of Washington ) State of Wisconsin ) ) Plaintiffs, ) ) v. ) ) The Thomson Corporation, and ) West Publishing Company ) Defendant. ) _________________________________) EMERGENCY MOTION FOR RECONSIDERATION OF THE DENIAL OF TAXPAYER ASSETS PROJECT'S MOTION TO PARTICIPATE AS AMICUS CURIAE The Taxpayer Assets Project (TAP) respectfully requests that the court reconsider its denial of TAP's motion to participate in the above captioned proceeding as amicus curiae. The Department of Justice (DOJ) noted in its opposition to TAP's motion that the purpose of a Tunney Act proceeding is to determine whether the proposed Final Judgment in a government antitrust suit is in the public interest. TAP is the one consumer interest that asked to participate as amicus curiae, and the interests of consumers are at least as important as the commercial publishers who will participate in the proceedings. DOJ claimed that TAP's amicus participation is not required to ensure that the Final Judgment is in the public interest. As this proceeding stands currently, two foreign- owned corporations that have long dominated the U.S. legal publishing market, and which have somewhat parallel interests, will be the primary participants, with DOJ as a counterweight. The only American owned publisher and the only small business that was granted amicus status was Hyperlaw, and only on a limited basis prohibiting any oral presentation at the hearing. This situation does little to satisfy the requirements that the public interest be carefully protected, since there have been long-standing complaints that consumer and small business interests have been given too little weight by government policy makers, not only at the DOJ, but also within the Courts and the Congress. The benefits of allowing TAP to participate as amicus is potentially great, while the burden the court must suffer in order to accomplish this is negligible at best. TAP will be able to provide a valuable contrast to all the other participants as a non-profit organization dedicated solely to serving the public interest. According to DOJ, TAP's views (and those of the other groups petitioning for amicus status) can be given "full and appropriate consideration" through review of its "extensive comments." This approach, however, is an inferior substitute for amicus participation. The court will be deprived of valuable information and based upon DOJ's filing, Plaintiff's Response to Public Comments, several issues have been misstated and would benefit from clarification by amicus participants: - DOJ states (page 50) that the requirement that Thomson approve any license agreement "appears unrelated to the acquisition." This bears directly on whether the Final Settlement is in the public interest and DOJ is clearly mistaken in claiming that the method for securing a license is unrelated to the acquisition. Under this approach Thomson is free to object to the form (i.e., electronic) as well as the content of the agreement. Providing so much leverage to Thomson, which has a tremendous incentive to undermine on-line access, is contrary to the public interest and should be remedied before the Final Judgment is approved. - DOJ is also off the mark in claiming (page 44) that in the enhanced primary law markets "the text of opinions is not difficult to obtain." Building upon this false assumption, DOJ claims that a text copyright is not a necessary element of the Final Judgment. This is directly contrary to the information submitted by those who are in the best position to know: the small, independent legal publishers. It is also a strange position DOJ take after DOJ was forced to lay-off 27 employees from its JURIS program after West Publishing refused to renew its contract as a supplier of the text of cases, and DOJ couldn't find an alternative supplier for the materials, and after DOJ has opposed efforts by citizens to obtain copies of court decisions collected by the Air Force that were typed into a government database from the West reporters, due to West copyright assertions on the text of federal judicial opinions that are published in its reporters. - DOJ also claims that it has no information indicating that Thomson was a potential competitor in this area of collection of primary source materials, and that the Final Judgment will not make getting cases any harder. This misstates the situation because Thomson was the most likely competitor and had made significant efforts towards completing a case law archive. DOJ is aware that Thomson had been an active in efforts to reform court practices in the dissemination of legal information, before it decided to purchase West, in copyright litigation and efforts at legislative reform. The Merger will eliminate a powerful force for reform in this market. Wherefore, the Taxpayer Assets Project respectfully requests that in the interest of justice and the protection of the public interest it be permitted to participate in the above captioned proceeding as amicus curiae. _____________________ James Love Director Taxpayer Assets Project Washington, DC 20036 (202) 387-8030 September 27, 1996