Copyright, 1995, Star Tribune

Debate rages over who owns the law

A contentious and sometimes bitter debate among legal professionals has raged over the Internet for more than a year.

The issue: Who owns the law?

The answer, according to those who ignited the discussion, is West Publishing Co. And that, they say, is outrageous.

West, meanwhile, vigorously rejects the notion and ponders how a company that has been revered by generations of legal scholars has suddenly been cast as a villain by information activists and competitors. "We do not have a monopoly," said Vance Opperman, West's president and chief operating officer. "We do not control the law. It is available to anyone who wants it."

Yet, from the San Francisco newsroom of Wired magazine to the Washington, D.C., offices of Ralph Nader lobbyists, to the Wisconsin state law library, West's critics call the company's grip on legal publishing indefensibly tight and suffocating.

"Courts decide controversies and develop the law," said John Lederer, a Madison attorney who leads a Wisconsin Bar Association task force on public access to the law. "There is something j ust outrageous about the fact that this has become a public function whose access is controlled by a private company."

Lederer's voice is among a rising chorus charging that West enjoys a stranglehold on federal case law that keeps costs for legal i nformation high and competitors out of the market.

Although its vocabulary is arcane and its issues remote from most people, the battle over "who owns the law" is hardly an academic exercise: Tens of millions of dollars -- perhaps hundreds of millio ns -- are riding on the outcome.

Some of the world's largest and richest publishers are attacking West head-on in its major markets while a handful of tiny CD-ROM publishers is carving out smaller niches in the $3 billion legal information market.

West is the target of federal lawsuits in New York and Washington, D.C., filed by competitors hoping to crack the market for federal case law.

Last month, West lost a bare-knuckled lobbying fight in Congress to protect its franchise when oppone nts, rallied by siren calls broadcast on the Internet, defeated a West-backed amendment to the Paperwork Reduction Act of 1995.

But for some of those on the front lines, the battle is about much more than money. Cutting through all the arguments, he re is the bottom line:

Lederer, among others, believes the law is too important to be left in the hands of private-sector publishers such as West. And Opperman, among others, believes the law is too important to be left in the hands of government.

That's the philosophical backdrop for a fight that pits the state of Wisconsin against West Publishing in what likely will be a pivotal chapter in American law.

A legal compass

Precedent is the cornerstone of U.S. jurisprudence. Attorneys reach back to yesterday's court cases for decisions that support the case they're arguing today.

The practice of citing precedent requires a shorthand language called a "citation system." That system has to be reliable and accurate so that judges an d opposing counsel can locate the cited cases.

As common to the profession as the doctor's stethoscope, a citation system serves as the legal compass by which attorneys navigate the vast sea of court decisions.

Among the hundreds of legal comp asses available today, West Publishing owns perhaps the most powerful. Indeed, when it comes to citing federal case law, West's citation system is by far the most widely used.

No one disputes the accuracy and reliability of West's system. On the con trary, critics argue, West's system is so good -- and so jealously guarded by the company - that it has kept competitors at bay for decades.

Opperman contends that anti-West forces in Wisconsin and elsewhere that cannot compete with West's system in the marketplace are instead trying to cripple the company by other means.

"They are going to outlaw the West citation system because it is too accurate, too reliable and too efficient," Opperman said. "They would like to see a citation system which the government approves. And that will allow them to put us out of business because their proposal, of necessity, requires a court rule or law that says, 'You must use this system. You may not use the West system.' "

Lederer insists that the state of Wisconsin has no intention of outlawing the West system. Rather, the proposal before the Wisconsin Supreme Court would pry open the market by giving other publishers a court-approved "public-domain" citation system that anyone, including West, could us e, he said.

Here it becomes important to understand a subtle but crucial distinction. West does not claim ownership of the decisions themselves. Decades ago, the Supreme Court ruled that judicial opinions are public property and therefore are not en titled to copyright protection.

But without a quick and reliable compass to locate them, the cases have little practical value. For that, you need a citation system. And for that, you pay.

"A citation system has a lot of importance on an econo mic level," Lederer said, "because what citation system you use can be linked with what books you have in the library."

Not close enough

West's citation system is designed to mesh with the law books it publishes. Citations on the company's elec tronic database, WESTLAW, also refer to the pages of its books.

Here is the citation for the West Publishing vs. Mead Data Central case: 799 F.2d 1219 (8th Cir 1986)

Translation? That case begins on page 1,219 of Volume 799 of West's Fe deral Reporter, Second Series. The parenthesis means the U.S. Eighth Circuit Court of Appeals rendered its decision in 1986.

West does not object if others cite to the first page of that decision. However, the company will not permit, except under t erms of a licensing agreement, others to cite pages beyond the first page.

Called "pinpoint" or "jump" cites, these citations take the reader to the exact page in a lengthy opinion. West's critics draw this analogy: Without pinpoint cites, they can only get to the city block -- not to the individual address and, therefore, not close enough for legal work.

In the case cited above, the Eighth Circuit ruled in favor of West, which had sued Mead after the Ohio-based competitor began publishing Wes t's internal page numbers. The judges ruled 2-1 that Mead, which owned the LEXIS-NEXIS electronic database, violated West's copyrighted citation system by unlawfully appropriating West's internal page numbers.

The court concluded that West was entit led to protection because the editorial arrangement of cases in West's law books "is the result of considerable labor, talent and judgment" and that access to those page numbers "would give LEXIS a large part of what West has spent so much labor and indus try in compiling . . . "

After more fruitless litigation, Mead in 1988 agreed to pay West an undisclosed royalty for the right to use internal page citations. (Last year, Mead sold LEXIS-NEXIS to Reed Elsevier, a large Anglo-Dutch publisher, for $1. 5 billion.)

But far from dousing the "who owns the law debate," the West vs. Mead decision only fueled the controversy. In 1989, an article in the UCLA Law Review harshly criticized the Eighth Circuit decision. In the article, titled "Monopolizing t he Law," two law school professors argued that the decision "in theory gives one publisher veto power over whether the profession, and thus the public, shall enjoy the full benefits of enhanced access to the law. . . ."

Two years later, in a case in volving telephone company white pages, the U.S. Supreme Court appears to have sided with the law professors. The justices unanimously ruled that the original publisher's "sweat-of-the-brow" effort to compile the names and phone numbers did not entitle the company to copyright protection when a competitor, Feist Publications, lifted the information for its own directory.

Saying the "primary objective of copyright is not to reward the labor of authors but to promote the progress of science and useful arts," Justice Sandra Day O'Connor concluded that "copyright rewards originality, not effort." O'Connor repeatedly cited the law review article in her reasoning.

Copyright experts regard that as a signal that West's copyright claims may not survive a Supreme Court test.

Emboldened by the Feist decision, Matthew Bender, a legal publisher owned by Times Mirror Co. of Los Angeles, last year launched a frontal assault on West's citations. According to David Nimmer, a copyright attorney who represe nts Bender, the company plans to publish -- probably on CD-ROM -- legal products and compilations of federal case law for which it plans to use West's citation system.

Nimmer has asked a federal judge in New York for a "declaratory judgment," saying , in effect, that in light of the Feist decision, Bender can use West's page numbers without paying any royalties. A small CD-ROM publisher, Hyperlaw, has intervened in that suit for similar competitive reasons.

In Washington, meanwhile, another Wes t competitor has gone to court hoping to obtain the keys to what it calls the "Crown Jewels" -- an electronic database of federal case law dating to 1789.

West had provided the information to the Justice Department as part of what was called the Jur is Project, a U.S. government-developed legal research tool used by federal prosecutors. West declined to renew its contract to operate the Juris system in August 1993. And when West pulled out of the contract, it tried to take the database with it.

But Tax Analysts, an Arlington, Va.-based publisher of legal and tax information, successfully blocked return of the database to West. Tax Analysts is seeking release of the database under the federal Freedom of Information Act.

For now, the "Crown Jewels" reside on magnetic tapes in the custody of the Justice Department while U.S. District Judge Gladys Kessler ponders whether to order the database released to the public.

William Dobrovir, an attorney representing Tax Analysts, said the datab ase his client seeks does not contain West-style pinpoint page numbers. Rather, the database contains formatting designed to operate the government-developed Juris system.

If Tax Analysts obtains the database, it has pledged to make it available at nominal cost to any one who wants it.

Last month, Dobrovir and Tom Fields, president of Tax Analysts, rallied their supporters to defeat a West-backed amendment to the Paperwork Reduction Act before Congress. They told lawmakers that the amendment w ould have insulated the Justice Department from having to release the Juris database under the Freedom of Information Act.

The Justice Department also opposed the West-backed amendment, which lawmakers dropped from the bill.

If Tax Analysts pr evails in court, Dobrovir said, "then some kind of a uniform citation system becomes extremely important because all these potential competitors would have the text but not the cite system."

A legal split

And that's what makes the battle over W isconsin's proposed citation system so important. Although it would only affect Wisconsin cases, if the system proves successful, it could spread to other states and possibly to the federal courts.

West President Opperman staunchly opposes governmen t-mandated citation systems as a matter of principle. "Any system that a court finds is reasonable, accurate or reliable ought to be allowed," Opperman said. "That has been our rallying cry for 100 years, and it is our rallying cry today."

Legal sch olars are split over public-vs.-private citations. The president of the American Association of Law Libraries, Carol Billings, is an ardent supporter of "public-domain" citations and spearheaded the adoption of one in Louisiana, where she is the state law librarian.

But Robert Berring, law professor and director of the law library at the University of California, Berkeley, argues its would be a mistake to abandon the proven West system and mandate the use of an untested replacement.

In Wiscons in, as in most courts across the country, the final, corrected versions of court decisions are not kept in a permanent state-owned repository. Historically, that task has fallen to private publishers such as West.

But Lederer argues that new and rel atively cheap computer technology means that for a few thousand dollars, Wisconsin cases could be permanently archived on state-owned computers and made available to the public via modems.

As the cases were decided, the clerk of court would assign t hem a number beginning with the year they were issued. The proposal also calls for each paragraph of every decision to be numbered, which would allow "pinpoint" cites to the paragraph rather than to the page number. For example: 1996 WIS 186,54. < P> Translation? The sample cite refers to the 186th decision of 1996 by the Wisconsin Supreme Court, paragraph number 54.

Marcia Koslov, Wisconsin state law librarian, said adoption would foster competition in the market for Wisconsin case law that 's now dominated by West and Lawyers Cooperative Publishing, a Thomson Corp. subsidiary. "Anybody who wants to play can play," Koslov said. "They have to use this citation system. But anybody can play."

The Wisconsin Supreme Court will hold hearings on the citation plan March 21.

"I do not see anything wrong at all with the private sector publishing our law," said Rex Ewald, an attorney from Monroe, Wis., who worked on the proposal.

But the public, he said, "has to have control over the law and custody of it. I think the proposal we make protects against our ever finding ourselves in the position where we lost the law."

John J. Oslund

© 1995 Star Tribune

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