WHO OWNS THE LAW?
Is There No Juris?
James Love is an information activist; he is devoted to liberating data. By last summer, Love was well aware of the problems with electronic access to the law. In July of 1993, Love submitted a petition to Attorney General Janet Reno asking her to allow the general public entry into a little-known Department of Justice database called Juris.
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Love, the director of a Ralph Nadarite public interest group called the Taxpayer Assets Project, knew that the obscure database at the Department of Justice could be the key to unlocking the case law monopoly. Juris was publicly owned, and it contained a complete collection of federal case law going back, in some areas, to 1900. If Love could convince the Department of Justice to open the Juris system to users outside the government, it would be a milestone on the road toward information equality. Through Westlaw and its only licensed competitor, Lexis, users pay $200 to $250 for this sort of information. Public access to Juris would make it almost free.
Love's effort did not succeed. Six months into his campaign, it was clear that the public would not get cheap access to Juris. On the other hand, the locked-out citizens were in good company. By December 31, the Department of Justice didn't have access, either. The two dozen or so employees of Juris had been fired or reassigned. The disk drives were silent. The database was dead. The story of how a campaign for access to the law resulted in the destruction of the country's most important publicly owned legal database offers a few clues about the balance of power in the coming information age.
Juris was created in 1971, two years before Lexis and four years before Westlaw. It inherited the electronic records of an experimental Air Force program called FLITE (Finding Legal Information Through Electronics), whose history goes back to the early '60s. During the months before it was shut down, Juris was used by about 15,000 government employees.
Unfortunately, back in 1983 the Department of Justice had grown tired of handling the bothersome data entry and data management tasks for the case law portion of Juris. In a move consistent with the Reagan-era emphasis of privatization, a leading database vendor was hired to take over the job. The vendor was West Publishing. Displaying a remarkable lack of foresight, the Department of Justice neglected to secure the right to reclaim their database should West ever decide not to renew the contract.
Rebecca Finch, the director of Linguistic Data Consortium, a broadly based group of 65 corporations, universities, and government agencies, frequently enters into contracts with large private data vendors. Finch looks back on the Department of Justice's agreement with scorn. "It was a pretty stupid move to negotiate that kind of contract," she says. "We have contracts with news wires and other vendors and sometimes we hear that we have to give the data back when the contract is over. We just say no. Once we pay for it it is ours. Usually when we take this stance we get what we are after."
The Justice Department lawyers were not so tough. Starting in 1983, the case law portion of the Juris database was leased from West with the understanding that if the data vendor ever withdrew it could take the case law with it. A decade later, when Love pressed his argument for open access, West did exactly that. Soon after the department's budget for the next two years was finalized in Congress, West announced it was pulling out of Juris. This left the department with a gap in its legal records that stretched over ten years.
But West didn't just take the data. They also took their proprietary page-numbering system. Without a budgetary appropriation to reenter the missing data, and without confidence that the data, even if reentered, would be usable to its attorneys, the Department of Justice had no choice but to shut the system down.
Love says the conflict over legal information is the toughest public access battle he has ever seen. The details of the controversy are too complicated for the evening news, and West is probably the most politically influential data vendor in the country. "I think we will win," Love predicts, "but it is a question of when. They've been able to delay this for a long time."
Today, the focus of the public access effort has shifted from lobbying the Department of Justice to suing it. Although the Juris system is dead, the case law has not yet been literally erased, and several Freedom of Information Act (FOIA) requests have been filed asking for parts of the database. A well-known FOIA attorney, William Debrovir, is seeking a court injunction forbidding the Department of Justice from deleting the valuable records until the FOIA requests are resolved.
"There is now no question that machine-readable data are agency records and are subject to FOIA," argues Debrovir. Still, the attorney, who represents not Love's group but another database publisher called Tax Analysts, was probably not surprised to learn recently that his FOIA request had been rejected on a number different grounds, including the unashamed acknowledgement that making the legal data public would hurt West's private market. Harming West's market is clearly not something the Department of Justice is prepared to do. Debrovir's FOIA is on appeal.
All the legal back and forth between West, William Debrovir, James Love, and the Department of Justice has left a few people hoping that Juris, in one form or another, will be revived. But even if the data is saved, the page numbers will still belong to West. Unless West is moved by a fit of altruism to give up its lucrative copyright, the well-guarded barrier at the entrance to the law will remain in place.
A fit of altruism may not be entirely out of the question. West's copyright of the page numbers of federal case law has brought small sudden squall of hostile publicity upon the company, which is not used to being cast in the role of corporate evil-doer. Last year, Congress undertook hearings on the page-number issue, and during the latter part of 1993, legal librarians, computer researchers, and small publishers jumped at the chance to attack West's monopoly.
Rebecca Finch points out that a whole generation of computer-assisted legal research has been stymied by a lack of available data. Under Finch's guidance, the Linguistic Data Consortium helps computer scientists gain access to large databases in order to developed advanced electronic search techniques. "We're getting multilingual text, news wire text, medical text; but the problem with legal data is that it is copyrighted," she says.
One of the seminal researchers in the area of computerized database tools, Carole Hafner, was forced to give up her work on case law because she could not get any of the raw material. Hafner, whose highly technical 1981 book, An Information Retrieval System Based on a Computer Model of Legal Knowledge, helped define the field, now studies biological and medical data. "All this research has been stalled all over the world because nobody can get any legal text," Hafner complains. "The research effort, the fundamental research on case law and databases has been brought to a standstill because of the fact that these companies will not share their data with researchers. They will not sell their data. They will not sell a tape. You can forget it."
Hafner's characterization is not entirely correct; there is highly advanced database research going on in at least one location: West Publishing. One of West's in-house computer scientists, James Olson, has designed a natural language search tool called West Is Natural (WIN), which even Hafner admires. "WIN is great, everything about it is great," she says, "but the problem is there's no competition." Hafner points out that there is tremendous debate today over the best way to access a database; semantic nets, formal logic, and neural net approaches all have their advocates. "All these people should have a chance to work on legal text," Hafner argues. "Legal text may have some unique characteristics, but nobody knows because we've never been able to study it."
Despite the vociferous criticism from West's rivals and competitors, Congress declined to pass a law disallowing the copyright on page numbers. While West's formidable political influence may have played a role in the decision, a more important factor was the ambivalence of other data vendors on the page-numbering issue. Competing publishers would enjoy being able to undermine the West monopoly, but at the same time the largest players in the information industry realize that all sorts of copyrighted compilations of public data could be at risk if Congress passes a law stating that page numbers cannot be protected.
After all, when you choose a particular portion of the public record and put it into electronic format, what keeps the next guy from coming along and ripping it off? West argues that it selects and edits the cases it publishes, and points to its page numbers as the unique signposts of the way it has decided to arrange the data. Get rid of the signposts, says West, and the information landscape becomes the site of a bloody free-for-all.
Interestingly, West's copyright of the page numbers of federal case law has never received a full airing in court. In 1985, Mead Data Central, West's main electronic competitor attempted to use the West page numbers in its own legal database, Lexis. In a preliminary injunction, the 8th US Circuit Court of Appeals upheld West's copyright, and West and Mead eventually signed a secret agreement that granted Mead a limited license to use the numbers. Widespread speculation holds that this agreement forbids Lexis to include the page numbers in CD-ROMs and other electronic formats. Meanwhile, West's provisional victory has kept other electronic publishers at bay.
The apparent disinclination in Congress to outlaw copyrighted page numbers has led West critics to mount a slightly different attack. Many US courts offer electronic copies of their decisions via local bulletin board systems; the decisions are not organized into a database, but they are inexpensive and available to everyone. Why not just stick official, publicly owned page numbers on them? If there were a consistent page-numbering system acceptable in all jurisdictions, any publishing company could pull the decisions into a database and compete with West on the bases of who provided the easiest and cheapest way to access the law. Various proposals for a page-numbering system have been wandering around the Administrative Offices of the US Court of Appeals for more than a year, but for one reason or another none of them have "stuck."
To the anti-Westites, the court system's failure to promulgate a simple, standard, public-domain citation system for US case law indicates a condition of advanced backbone-enfeeblement. "The courts have lost their moral compass," says Alan Sugarman, whose company, Hyperlaw, produces CD-ROMs of legal data. Sugarman points out that the US Courts have only two jobs: They resolve individual disputes and they publish their decisions as guidance for everybody else to follow. The fact that these decisions lack citable page numbers puts Sugarman into a state of voluble outrage. "We are talking about the law, here!" he says. "We're not talking about a by-product. Publishing cases for people to cite is one of their primary jobs. So, why don't they take some of their budget and spend it to get their materials into an authoritative form?"
As for West, it holds that the page-number issue is a tempest in a teapot. Gerry Sikorski, West's spokesperson on the Juris and page-numbering issues, says that West would not oppose the idea of a standard, nonproprietary electronic-numbering system. "We have never asked a court to embrace our citation system," he insists.
Still, Sikorski is quick to point out what he perceives as the inevitable problems with public-domain page numbers. "The question you have to ask is, what's broken?" he suggests. If the government were to try to put standard page numbers on court decisions, Sikorski believes that "there would be a lot of expense, a lot of disruption, and it won't lead to anything more than a lot of taxpayers, citizens, and legal writers and readers going through a lot of gymnastics." Still, West's spokesperson shrugs, "If somebody proposes something good, then what the heck?"
West's problem – and, of course, it's palladium – is that the privately held company is intimately entangled with the federal judiciary. Bad publicity could be deadly for a firm that depends on the goodwill of courts and judges to maintain its position as the bearer of the standard text of the law. West goes to great lengths to enhance this relationship. The company sponsors yearly cash gifts of $15,000 to federal judges (an independent judicial panel, not West, decides who shall receive the prizes), and West has been known to work closely with judges in order to insure accuracy in published decisions. The judges are reluctant to lose the help of a good friend, and West's role is explicitly acknowledged in a number of jurisdictions.
At the same time, West needs to aggressively resist the implication that it has any special or unfair relationship with the judiciary. When West's president defended his company before Congress last year, he went through various jurisdictions one by one, arguing out that "there is no problem with access." Other publishers, he said, "are as free as we are to publish their own compilations" of legal material.
In its attempt to publicly downplay its position, West resembles a company that wants to have its cake and eat it too. West insists that it is the best and most popular legal publisher, and it is constantly assuring its customers that it can provide them with the standard text. On the other hand, it is also being forced to argue that it doesn't do anything any other publisher couldn't do. West's motto is "Forever Associated with the Practice of Law." This seems true; there is no other publisher whose copyrighted arrangements are as essential to attorneys as are West's. But maintaining this role for eternity – or even for another decade – has begun, paradoxically, to require certain efforts to protect and even to conceal it.
West's involvement in government does not begin and end with giving cash prizes to judges. Vance Opperman, West's president, is a leading Democratic party fund-raiser who has what a Minnesota newspaper called "hard-wired connections" to Vice President Al Gore. He is also finance chairman for the 1994 re-election bid of California Senator Dianne Feinstein. West may be standing on an ever-narrowing border between private enterprise and public service, but this border coincides with the territory occupied by the current administration. A politically progressive baby boomer, Opperman once told an interviewer that he listens to Bob Dylan's "Blowin' In the Wind" nearly every day.
Gerry Sikorski, West's spokesperson, is a retired Democratic member of Congress from Minnesota. Sikorski insists that West's role in the US judicial system is a benevolent and democratizing one. "West provided legal documents that weren't provided elsewhere, that weren't preserved or collected or put together," Sikorski says. "These documents are an important part of our democratic legal structure."
Again, though, West finds itself on ever narrowing ground. The company believes access to these documents is important, but it doesn't believe it is important enough for the government to put them online with public-domain page numbers. "Nobody is standing in the way of that," says Sikorski, "but are you willing to pay the money that will cost? Is it a better use than keeping criminals off the street or having more judges?"
In defending West's decision to sabotage Juris, Sikorski points to the growing need to "clarify" the conflict between public data in its raw form and public data that has been transformed by editing into private property. As the online resources grow more common, this conflict will intensify. Even James Love agrees that Juris was a bad mix; the case law was in the public domain, but the page numbers and headnotes belonged to West. "We feel very strongly that in this day of information superhighways, the concept of intellectual property is critical to success," says Sikorski. "This mixture of data complicates things." By turning off the main publicly owned database of case law, West found an effective way to eliminate the source of confusion. As for the Department of Justice employees, they are now free to purchase their case law from what Sikorski calls a "better, more useful, more advanced system." In other words, they can access Westlaw.
Sikorski asserts that the chorus of complaints aimed at West by Juris advocates is simply the carping of jealous rivals. After all, he says, it was West who more than a hundred years ago won the important legal battles that earned private companies the right to reprint court decisions, thus opening up the world of legal publishing to private enterprise. Today, he says, West's preeminent position is based almost entirely on its high-quality editing and its detailed headnotes that summarize and catalog the decisions. James Love and Alan Sugarman and other public access advocates "want West to do the work and then strip off the book covers and the spines and republish it."
In conversations with attorneys with no ties either to West or to the Taxpayers Assets Project, however, few agreed that West's great virtue was its editing or its notes. Most said that West's value lay in its completeness and its citability. Mike Rushford, president of the Criminal Justice Foundation, a conservative group that regularly files briefs with the Supreme Court, had one of the more explicit responses.
"That's bullshit," he said. "It is not editing or the headnotes, it is the page numbering." As head of a public interest law firm, Rushford is constantly looking for ways to save money. He regularly asks his attorneys if they could substitute legal data on CD-ROM for West's high-priced database and law books. "My legal staff says we can't cite to them," Rushford reports, "so we are going to have to buy the West books, too. It is just a matter of practical concern. We have to make a judgement about what the courts will want." When you are filing a brief before the Supreme Court, Rushford points out, the last thing you want to worry about is whether your citation is acceptable.
In a sense, the West monopoly represents a classic economic logjam: Old property relations interfere with new technologies. Just as feudal relationships in the early modern era restrained, for better or worse, the development of a capitalist economy, so the outdated notion of copyrightable data monopolies obstructs new forms of commerce built upon widespread electronic access to basic information. If the text of the law were free, or nearly free, companies would be dueling with each other to see who could add the most value to the data. The competition would then genuinely be over search tools, interfaces, and commentary rather than over page numbers and citability.
All West's opponents have a slightly different vision of the what this future will look like. James Love looks forward to a day when any citizen can access a legal database for free at a local library. Alan Sugarman hopes to be one of the publishers selling inexpensive and highly-focused CD-ROMs to specialty law firms. And Carole Hafner believes that if the legal text was available to computer scientists, in ten or fifteen years the need for headnotes and indexes might be eliminated altogether; lawyers and non-lawyers could query the law in a vast number of user-friendly and technologically distinct ways.
Still, it's impossible not to sympathize at least a little with West's uncomfortable situation. The company's importance is indisputable; its history is impressive. "West has performed a democratic role since the 19th century," says Sikorski, truthfully. Ironically, like the old AT&T/Bell Telephone system, West may simply have been too successful at making itself indispensable.
Bonus Offer: Build Your Own Legal Database
Many courts today offer their decisions via modem. The Administrative Office of the US Court of Appeals in Washington, DC offers a list of these bulletin boards. A few key strokes in your communications software and you can have a script that dials these boards nightly and loads the decisions onto your hard drive. Then, when the government finally decides to establish a nonproprietary citation standard, you can get into the law-keeping business yourself. A few warnings, however. The text of decisions on court bulletin boards are often not the final corrected text as it appears in the bound volumes published by West and others. Unfortunately, until the government takes better control of its online data, you could be stocking your system with incomplete or incorrect case law. Also, not all jurisdictions are equally conscientious about posting decisions and corrections. So, you'll have to call the clerk and make sure you've got them all. Finally, many courts have decided to charge money for access to electronic decisions. The going rate seems to be about US$1 per minute. The US Circuit Court boards are free, however. Maybe you should start with this list of numbers, data only: (If you are prompted for a password, type: bbs is Macbinary.) 1st Circuit +1 (617) 223 4640 2nd Circuit +1 (212) 385 6003 3rd Circuit +1 (215) 597 1871 4th Circuit +1 (804) 771 2028 5th Circuit +1 (504) 589 6850 6th Circuit +1 (513) 684 2842 7th Circuit +1 (312) 435 5560 8th Circuit +1 (314) 539 3576 9th Circuit +1 (415) 744 9020 10th Circuit +1 (303) 844 3222 11th Circuit +1 (404) 730 9600 District of Columbia +1 (202) 219 9589 +1 (202) 273 0269