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Dear members of the U.S. Judicial Conference:
We write to urge the United States Judicial Conference to adopt a public domain citation for judicial opinions.
The Union for the Public Domain (UPD) was created in 1996. The UPD is an independent membership organization. Our goal is to protect and enhance the public domain in matters concerning intellectual property.
Our membership is a diverse mixture of persons with eclectic backgrounds, including many computer and software experts, small businesses, students, professors, lawyers, librarians, concerned citizens, and others who are seeking common ground in order to provide a stronger voice for the public's rights in matters concerning intellectual property.
The UPD strongly urges the court to adopt a system of public domain citations. As the court is aware, at present only the United States Supreme Court publishes its own official reporter of court decisions. This reporter is published years after the opinion is issued by the court. As a consequence, the citation for most federal case law is based upon the page and volume numbers of books sold by West Publishing, a firm owned by Thomson, the Canadian publishing giant.
This may have been reasonable when West was the only publisher of lower
court federal opinions. Hiowever, today electronic publishing has allowed
multiple sources of case law. The exclusive use of West's citation system
today impedes the use of these alternative sources.
A system of citation which is based upon the private publishing of opinions in books also has obvious technical limitations in today's world of computers and the Internet. Why wait for a citation until a book is published? How should page numbers be represented on Internet Web pages or on a CD ROM? Why should lawyers and the public have to go back and change their citations when West delivers its printed volumes? Clearly it is time to embrace a more modern citation system that is appropriate for the wide range on technologies used to disseminate legal information.
But an even more compelling reason is that West Publishing claims that it actually owns the citations to federal court opinions. West Publishing is currently pursuing these claims in copyright suits in New York and Minnesota. In the recent merger between West Publishing and Thomson, the Department of Justice has obtained a compulsory license for the citations. This license spells out the cost of the West monopoly. Rival publishers and non-profit publishers must pay fees which escalate to about 9 cents per 1,000 characters, per "product" per year, to use the West citation.
In practical terms, this means a publisher has to pay from $1 to $3 or even more for to publish a single federal court opinion in usable form. This fees must be paid every year to West Publishing. If a publisher has both a CD-ROM product and an online product, it has to pay twice -- once for each product.
Moreover, under the terms of the antitrust settlement agreement, West can refuse to provide this license to persons who wish to publish the cases for free on the Internet. Indeed, one college was reportedly asked by West to pay $8 per "hit," to use the West citation on a single court decision it wanted to put on a free Internet site.
The West copyright claims on citations, and the courts' de facto requirement that West citations be used has caused a troubling situation. Law schools and others provide some federal case law on the Internet to the public without charge, but its use is significantly impaired because it cannot be cited. Moreover, the lack of a public means of citation retards more widespread internet availability of the case law.
The West claim that it "owns" the citations under copyright law is being tested in federal court. We are among those who believe the court should and will reject the West assertion that it can copyright judicial citations.
However, the Judicial Conference should be aware that West is seeking other legal mechanisms to buttress its ownership claims to citations. West is the single most important proponent of a new sui generis law for atabases, that would define its paper bound court reports as a "database," and prevent unauthorized "extraction" of its citations. This proposal was considered by a December 1997 diplomatic conference in Geneva, hosted by the World Intellectual Property Organization (WIPO). Congress has already indicated that it is planning hearings on this proposal. Moreover, West publishing has sought other legislative vehicles to strengthen its monopoly on judicial citations, such as an amendment to the federal Paperwork Reduction Act.
Thus, regardless of the outcome of the copyright suits, the Court must recognize that its continued reliance on a private company to provide citations for its opinions may block others from providing usable case law.
The idea that any private company could "own" something as basic as the citations to court opinions is repugnant. Respect for the law is based upon the notion that the law is essentially democratic and civic, not the domain of private interests. We believe that the courts should provide a public means of citation. Absent doing so the courts effectively mandate use of a private company's product to access and use public documents.
There is now broad public support for the notion that government bodies should use the Internet to enhance the public's access to public documents. This is important for everyone, not only for practicing lawyers or legal scholars. Yet the courts continued reliance on a private comapany to provide the citations to make case law usable blocks full use of the case law currently available to the public for free.
We recognize that judges and court employees will have to expend some effort to number court opinions, and to number the paragraphs of opinions. This cannot be a significant burden for the court. The benefits to the public clearly warrant such effort. Indeed, in evaluating this proposal the court should also consider the beneficial impact greater competition would have on the courts own costs in obtaining citable case law.
For these reasons, we urge the Judicial Conference to adopt a system of public domain citations to court opinions.
We respectfully request that the Court grant us an opportunity to address the court at its public hearing on April 3rd.
Union for the Public Domain