Re: who owns the law - response

> 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.
>
> 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 case-
>reporting 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).
>
> 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.
>
>
> West's critics assume that creating some kind of vendor-
>neutral 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.
>
>Christopher G. Wren
>cgwren[_at_]acm.org

Actually, according to West Publishing v. Mead Data, West does claim copyright in the citations as well as in the pagination, but the parties to that suit --West and Lexis-- agreed that refer to the citations was a fair use of the copyrighted material. It strikes me that use of pagination should fall under the same fair use, particularly when the Blue Book, which Wren claims as authoritative requires the use of page numbers as part of the citation. While there is no doubt that West has a valid copyright in its headnotes and digesting scheme, and even in the order of the cases published, it seems to me questionable to extend that copyright to pagination, which happens mechanically after the editorial work is done. Especially after the cloud placed on "sweat of the brow" after Fiest, I'm not sure that the pagiination part of West v. Mead is still valid.

Wren talked mainly about federal materials, but many states no longer publish official state reporters, instead relying solely on West's "unofficial" versions. For those state materials, one has no option but to refer to the West version. Since the only way to use the public opinions of those courts is to cite to West citations and page numbers, perhaps this is a good area in which to apply the doctrine of merger. The citations and pagination have become so inextricably melded with the public record that use of the public record has become impossible without the use of them. West would still have the exploitation of the value added part of their work -- the headnotes, digesting system, and collateral finding aids.

One of the hopes of the electronic age is that direct access to the text will make the need for collateral finding aids unnecessary. Likewise, if electronic searching becomes the normal means of access to the data, the page numbers are unnecessary since a text search will lead directly to the relevant and cited passages.

West has gained a monopolistic position primarily by giving good service to the legal profession, but they should not be allowed now to use that monopolistic position to extend an unwarranted dominion over the legal publishing field. Let us have our page numbers.

Buford Terrell
<terrell[_at_]sugar.neosoft.com> Received on Tue Apr 26 1994 - 13:55:13 GMT