who owns the law - response

From:	CHARLI::MJENSEN      25-APR-1994 10:51:13.51
To:	CNICOPY
CC:	MJENSEN
Subj:	response to wired

From:	SMTP%"CGWREN[_at_]ACM.ORG" 24-APR-1994 22:56:23.36
To:	MJENSEN
CC:	
Subj:	Letter to WIRED re "Who Owns the Law?" (LONG -- 11.6KB+)

ON APRIL 18, 1994, DENIS J. KONOUCK <DKONOUCK[_at_]CAP.GWU.EDU> WROTE:

>> In the May 1994 issue of Wired Magazine (issue number 2.05)
>> there is a good article on West's lock on legal publishing
>> through its copyright of the pagination scheme of federal
>> court decisions.

>> If you are going to request a copy from someone I guess I
>> better give a full citation:

>> Wolf, Gary. "Who owns the law?". Wired, volume 2, issue 5,
>> (May 1994), PP. 98-101, 138,139.

>> This issue might not be out on the newsstand yet.

On April 17, 1994, I faxed (with a copy by U.S.P.S., i.e., snail mail) the following letter to WIRED in response to Wolf's article:

                         LETTER FOLLOWS
=================================================================

April 17, 1994

"Rants and Raves" Editor
WIRED Magazine
P.O. Box 191826
San Francisco, California 94119-9866

To the editor:

   I had hoped that Gary Wolf's "Who Owns the Law?" (WIRED 2.05, page 98) would help readers untangle the competing claims in the debate over copyright protections for private-sector publishers' pagination of public-domain legal text. Regrettably, Wolf instead perpetuated misunderstanding.

   As a lawyer, I have for many years used electronic and print versions of West's publications, as well as those of West Publishing Company's competitors. As a writer, I have also written (in two textbooks I co-authored) about the electronic and print versions of West's publications, as well as those of West's competitors; my textbooks deal with most of the legal sources discussed in Wolf's article. Perhaps most important in this context, I am not employed by, and do not have any financial, family, or other connections to, West Publishing or any of the people or organizations identified in Wolf's article.

   The key flaw in Wolf's treatment lies, I think, in his failure to acknowledge the difference between citation and pagination, a distinction critical to understanding this debate and a distinction that West's critics consistently (and, I think, deliberately) blur. Lawyers and others who write legal documents routinely rely on citations to identify the legal and nonlegal authorities used to support, refute, or explain something -- an argument, or perhaps a principle of law -- contained in those documents. In a common-law legal system largely built on deference to precedential court decisions, citations play a crucial role in maintaining the chain of law and logic that flows through court decisions over the years. The legal community even has a detailed, widely used guide to proper citation form -- The Bluebook: A Uniform System of Citation, published by the Harvard Law Review -- that many courts require lawyers to follow to ensure consistency and accuracy in citations.

   Neither West nor (to my knowledge) any other publisher either claims it owns the citations to any of the legal materials it prints or has attempted or threatened to sue anyone for using the citations to those legal publications. In fact, contrary to Wolf's specific assertion that "other publishers of legal decisions are not permitted to show, in the margins of their books or in the headers of their databases, parallel citations that describe where decisions appear in West-owned books or in the West-owned electronic database, Westlaw," other publishers often include parallel citations to the corresponding documents found in West's publications. For example, Lawyers Cooperative Publishing routinely includes in its version of U.S. Supreme Court decisions the parallel citation to West's version and to the United States Reports version. Similarly, West includes in its version of these decisions the parallel citation to Lawyers Cooperative's version and to the United States Reports version. (The public-domain United States Reports version of the Court's decisions does not include any parallel citations to other versions of those decisions.) Even at the height of West's lawsuit against Mead Data Central over the use of West pagination, court decisions available in LEXIS continued to display in their citation field and in their screen headers the parallel citations to West's case reporters. If HyperLaw's Alan Sugarman (one of West's principal antagonists) wants to include a parallel citation to West's case reporters in the document headers on his CD-ROM version of court decisions, I doubt West or anyone else would complain.

   Likewise, Wolf errs in writing that "[i]f you want to cite these [West-published] decisions in a legal brief, . . . you will probably have to traverse [West's] copyright." As every lawyer knows (or should know), citing a West-published decision in a brief -- or in this letter, as when I write the citation Hirschey v. Fed. Energy Reg. Comm'n, 777 F.2d 1 (D.C. Cir. 1985) -- does not traverse West's copyright interests. Indeed, if merely using a West-based citation in a brief violated West's copyright, West would not have the power Wolf ascribes to it: neither courts nor lawyers would accept a citation system (or an accompanying casereporting  system) that created the risk of a copyright violation every time someone used the system for its intended purpose.

   Pagination, however, presents a different question. Pagination deals with the publisher's decision about how to lay out a book, where to place graphics, where to break text across pages, and so on. Here, the issue concerns whether a publisher should have the right to protect from copying (either literally, or virtually through the placement of markers in text) the physical result of the activities that produce the original page arrangement -- in short, whether a publisher can protect itself against economic "free riders" who lie in the weeds, wait for someone else to do the work, and then duplicate the work and sell those copies without incurring any of the underlying effort or expense.

   Sugarman and others who share his view appear to believe that pagination of text has a mechanistic quality that does not deserve copyright protection. Having spoken with employees at West involved in the production of their publications, and having toured West's facilities (as have many authors, law librarians, and other members of the public), I am convinced that much more work -- including considerable substantive editorial review -- affects the pagination of court decisions than most people believe (or than many people want to believe). Moreover, as an author who has collaborated in the design and pagination of his own books, I know from experience that pagination must account for many factors, including esthetic ones, and does not occur mechanistically. In my view, these efforts make pagination, even of public-domain material like court decisions, worthy of copyright protection.

   I suspect that similar (if not identical) considerations attend the creation of a CD-ROM product. Having seen some of Sugarman's comments relating to the pagination issue posted on an Internet list, I find myself wondering what position he will take if someone, adopting his philosophy, duplicates his CD-ROM product of public-domain documents on a desktop CD-ROM publishing system and offers the copies for sale at prices of, say, half or a third of those Sugarman charges.

   In a similar vein, I suspect James Love and the Taxpayer Assets Project (TAP) would suddenly see merit in West's position on pagination if, say, TAP assembled a collection of significant public-domain documents bearing on an important public policy issue, re-typeset and paginated the text into a new book format, offered the publication for sale as a way to raise funds to underwrite TAP's activities, and then found someone else had photocopied the publication and offered it for sale at a price much cheaper than TAP's.

   In this regard, West practices what it preaches: although West includes in its version of U.S. Supreme Court decisions the citation to Lawyers Cooperative's corresponding versions, West does not include any markers identifying the actual pagination found in the corresponding Lawyers Cooperative documents. Lawyers Cooperative follows the same policy with respect to West's versions. Both West and Lawyers Cooperative include markers identifying the public-domain pagination found in United States Reports.

   Even assuming, however, that a citation system can confer what Wolf calls a "license to print cash," West's critics have curiously ignored a major characteristic of federal law: since the late 1700's, a huge public-domain citation system for federal law has existed that neither West nor any other private-sector publisher created or controls. West's dominant position in publishing law books in areas where it neither created nor controls the citation or pagination systems highlights the fundamental weakness of the critics' attacks: West's success flows from adding value to the public-domain documents it collects from a variety of public sources, not from some supposed control over page breaks or citations.

   Lawyers can easily acquire the U.S. Government Printing Office's inexpensive public-domain version of federal statutes and U.S. Supreme Court decisions, yet lawyers by the thousands purchase expensive private-sector versions available from West and Lawyers Cooperative. Why? Because West and Lawyers Cooperative add to their publications useful features not found in the public-domain version. Any value in West's (or any other publisher's) pagination derives from the recognized editorial integrity of the product and (for court decisions) the accompanying indexing system, not the other way around. Mike Rushford, of the Criminal Justice Foundation, can call that claim (as he does) "bullshit," but I strongly suspect that neither he nor his staff uses readily available (and cheap) public-domain versions of federal authorities to do their research, even when the lawyers have to cite those public-domain versions to the courts.

   West's critics assume that creating some kind of vendorneutral  citation system or putting private-sector pagination of legal documents in the public domain will somehow make the law more widely available, more democratic. But the nature of legal publishing -- indeed, of publishing in general -- argues against that outcome. For users of legal documents, the principal value of law books derives from the user's ability to locate the relevant text easily and quickly and to extend the results of research systematically. That value comes from the indexing systems that accompany the texts, not from the texts themselves or their page breaks. Good indexing systems allow users to find the right law for the right context. (Paul Saffo recently made an analogous point in this magazine about the relative value of content and context. "It's the Context, Stupid," WIRED 2.03, page 74.) Only if public-domain citation or pagination systems for court decisions come with useful indexing systems will the public-domain alternatives offer any significant additional benefit to the public. But none of West's critics propose creating public-domain indexes to accompany their public-domain citation or pagination systems, leaving these systems (whatever they turn out to be) looking like solutions in search of a problem.

Sincerely,

/s/

Christopher G. Wren
cgwren[_at_]acm.org Received on Tue Apr 26 1994 - 02:55:07 GMT