Newsgroups: alt.etext From: dell@wiretap.spies.com (Thomas Dell) Subject: [comp.org.cpsr.talk] Public Access Alert - Federal Caselaw Message-ID: Organization: The Internet Wiretap Date: Thu, 21 Jul 1994 00:08:29 GMT Newsgroups: comp.org.cpsr.talk From: James Love Subject: Public Access Alert - Federal Caselaw Date: 20 Jul 1994 04:48:24 -0700 Organization: Computing Professionals for Social Responsibility Message-ID: <30j2u8$jv0@snyside.sunnyside.com> Lines: 291 Distributed to TAP-INFO, a free Internet Distribution List (subscription requests to listserver@essential.org) TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE CROWN JEWELS CAMPAIGN - Juris, Legal Information July 19, 1994 - Attorney General Janet Reno asked to request Anti-Trust Division review of new procurement for Computer Assisted Legal Research (CALR) Procurement - Department of Justice (DOJ) asked to use procurement process to create a public database of federal judicial opinions, and break West monopoly on copyright of page numbers of published federal judicial opinions. - Issue is key battle in fight over public access to federal legal information. Citizens are urged to fax comments to Attorney General Janet Reno in support of a decision to use the procurement to put the database of federal caselaw into the public domain. COMMENTS SENT TO JURIS@TAP.ORG WILL BE COPIED AND MAILED TO THE DEPARTMENT OF JUSTICE. Today the following letter was sent to Attorney General Janet Reno and Stephen Colgate, the Assistant Attorney General for Administration. The letter is signed by TAP and the Government Purchasing Project, a citizen group which encourages government agencies to use their procurement power to facilitate the development of better products and markets. The purpose of the letter is to continue to press the Department of Justice (DOJ) to use its procurement for new computer assisted legal information to solve the core problems which prevent federal legal information from being more widely available. DOJ has told people that they will issue a new solicitation for computer assisted legal research (CALR) this month. This new solicitation is extremely important. We urge persons to fax or email a message to Attorney General Janet Reno (fax: 202/514-4371 or 202/514-4372) or Stephen Colgate (202/514-1778), urging DOJ to accomplish the following objectives in its procurement: - create a national non-proprietary system of legal citations, breaking the West Publishing monopoly which stems from its copyright of the page numbers of published legal decisions. (See "who owns the law," in the may issue of Wired, or JURIS posts on tap archives at cpsr.org for background). - Require the winning bidder to place a copy of the database into the public domain. At present, only two high priced services (LEXIS and WESTLAW) have databases of federal caselaw. (DOJ has a database called JURIS, but West claims that it "owns" much of the database, under two Reagan era contracts). The federal government now spends more than $50 million per year on LEXIS and WESTLAW. It would cost about $6 million up front to replace missing historical records (which West claims to own), plus a relatively modest investment (less than $.5 million) per year to maintain data collections, if the government decided to create an electronic copy of federal caselaw. This would dramatically increase competition for CALR CD-ROM products and online services, lowering the government's costs, and providing the public with an enormous flood of innovative (including expert systems) and lower priced products and services. Those who want to send comments by email may send a message to juris@tap.org, which will be copied and forward to the Department of Justice. Thanks. jamie love (love@tap.org) The letter follows: ---------------------------------- July 19, 1994 Janet Reno Attorney General Department of Justice Washington, DC 20530 by fax: 202/514-4371 or 202/514-4372 Stephen Colgate Assistant Attorney General for Administration Department of Justice Washington, DC 20530 by fax: 202/514-1778 Re: DOJ procurement of computer assisted legal research Dear Honorable Janet Reno and Mr. Stephen Colgate: In a letter dated July 11, 1994 we wrote Mr. Colgate and Ms. Anne Bingaman about our concerns regarding a Department of Justice (DOJ) solicitation for computer assisted legal research (CALR). We have been told that the solicitation will be issued this month. We are concerned about possible anticompetitive aspects of the next DOJ CALR procurement. BACKGROUND As you know, from 1971 until January of 1994 the federal government ran its own CALR program, called JURIS. This program was terminated abruptly when West Publishing (West), a company which was paid by DOJ to provide caselaw for JURIS for more than a decade, refused to continue its relationship with DOJ, over a dispute regarding public access to the caselaw section of the JURIS database. Since the Reagan Administration gave West a contract which allowed that firm to claim ownership over much of the caselaw in the JURIS database, DOJ was faced with a difficult task -- find a new source for more than 10 years of data from the federal courts within 90 days. When West pulled out of the contract there were only three electronic copies of the database of federal caselaw in existence - WESTLAW, MDC's LEXIS and JURIS. West claimed that it "owned" the case law in JURIS, and there was considerable speculation that litigation between Westlaw and MDC may have prohibited MDC from bidding on the JURIS contract. While West had known about pressures for public access to JURIS since 1991, and began negotiations on a new contract in late 1992, the company waited until October 1993 to announce that it would terminate its JURIS contract. This was significant, because by October 1993 the DOJ appropriation had already cleared key congressional committees, and it was impossible to seek funding to replace the caselaw which would be removed from JURIS. As a result, DOJ was forced to lay off all JURIS employees and end all data collections for the nation's most important database of legal information. Competition in the CALR market is severely limited by two factors. First, as noted, West has managed to gain ownership over the government's own database of federal caselaw, so new entrants must spend millions of dollars to re-enter more than a decade of historical judicial decisions. Second, West Publishing claims that it owns a copyright on the page numbers of its published judicial opinions, giving the firm a monopoly over an important and valuable citation system widely used by federal judges. DOJ'S NEW CALR PROCUREMENT DOJ will soon offer a new "competitive" procurement for CALR services. As we indicated to Mr. Colgate on July 11, this procurement will be important, and people are waiting to see how DOJ responds to West's destruction of JURIS. Will the new procurement be one that break's the West-LEXIS duopoly on online CALR? Or will the new procurement be a reward of sorts to West, for its destruction of JURIS? Put another way, will the new procurement be truly competitive, so that many firms, large and small, can bid on the contract, or will it be written so that only West and LEXIS can bid? THE CASELAW DATABASE As noted, only two firms, West Publishing (West) and Mead Data Central (MDC), have ownership of the historical records of federal judicial decision in electronic formats. Unless the procurement requires the contractor to put the database into the public domain, it will be very difficult for any new firm to enter this market. Several firms have already asked DOJ to require in the procurement that the database be placed into the public domain. THE PAGE NUMBERS A single firm, West, claims, persuant to the copyright laws, that it is the sole owner of the page numbers of federal judicial decisions it publishes in paper formats. And since West is the official or only (paper) publisher of many court decision, this gives West a monopoly on a very important element of the official government citation system for the law. We believe that this monopoly is unlawful, unwise, and anticompetitive, and that the public interest is clearly served by the existence of a non- proprietary system of citation, including interior pagination, for all federal (and state) judicial decisions. THE ANTI-TRUST DIVISION A copy of our July 11th letter was sent to Anne Bingaman, Assistant Attorney General for Antitrust. According to Anne Jones, who works for Assistant Attorney General Bingaman, the Antitrust Division will provide an opinion letter on the issue of the antitrust ramifications of the current solicitation, if a request is forthcoming. We urge you to request such an opinion letter immediately, so that the response will be available before the new solicitation is made public. As noted, it is our position that a solicitation that allows the bidder to retain ownership over the citation system and the database will be profoundly anticompetitive, and only benefit two firms, West and MDC, at the expense of their competitors, DOJ, other government agencies and the public. We urge you to request Assistant Attorney General Bingaman to address the following issues: CITATIONS 1. Is the monopoly ownership of the page numbers in the official legal citation a matter which has created barriers to entry in the market for CALR? 2. Does the DOJ procurement create an opportunity to establish a non-proprietary system of citations and page numbers for federal caselaw? 3. Would a non-proprietary system of citation stimulate entry by new firms and increase competition, leading to lower prices and better products? OWNERSHIP OF DATABASE 4. Do the high sunk costs of data entry for the historical copies of federal judicial decisions create entry barriers for new firms in the market for CALR? 5. Only two firms have ownership of the database of federal judicial opinions. Does DOJ consider this situation sufficient to guarantee that taxpayers and consumers are not paying monopoly prices for CALR? 6. Would the CALR market be more competitive if bidders could obtain from the government a copy of the database? 7. If the DOJ solicitation allows the bidding firm to retain ownership over the database of caselaw, will this enhance or reduce competition in this or future solicitations? Benefits of Greater Competition 8. What would be the benefits to DOJ, other government agencies and the public if there were greater competition in the market for CALR? DOJ PROCUREMENT DECISIONS 9. Did the 1983 and 1988 decisions by DOJ to give West ownership over the federal caselaw in JURIS enhance West's monopoly power? 10. If DOJ, in the 1994 procurement, allows the vendor to retain ownership of the caselaw and the citation system, will this further enhance West's monopoly power? Given the significant and continuing technological changes in the computer and telecommunications fields, we have, for the first time, the opportunity for all citizens to have low cost access to legal information through libraries, schools, homes and work places, giving the public greater knowledge of their rights and obligations under the law. This promise, however, is held hostage to a technologically outdated duopoly over government judicial decisions. It is simply outrageous that private companies can exercise ownership of the written law. It is very important that the Department of Justice facilitate changes which benefit the public, by enhancing competition. DOJ procurement decisions should facilitate the development of the best new CALR products, and that will not happen if the solicitation is written solely to perpetrate the status quo, thus permitting West and MDC to continue their tight control over public access to legal information. Once again we are repeating our request for a timely meeting with Mr. Colgate and other DOJ officials responsible for this solicitation for CALR. Sincerely yours, James Love, Taxpayer Assets Project, jamie@tap.org Eleanor Lewis, Government Purchasing Project, eleanor@csrl.org cc: Anne Bingaman, Steven Kelman, Linda Gustitus --------------------------------------------------------------------- TAP-INFO is an Internet Distribution List provided by the Taxpayer Assets Project (TAP). TAP was founded by Ralph Nader to monitor the management of government property, including information systems and data, government funded R&D, spectrum allocation and other government assets. 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