With the advent of new technologies, even remote and rural communities now have an opportunity to access a great deal of affordable, and often free, information from the U.S. government. Operating on the principle that information and databases created with taxpayer dollars should be available to citizens to the greatest extent possible, the U.S. Government Printing Office, for example, has put the Congressional Record, the Federal Register and all House and Senate bills into the public domain on the internet (the computer-accessed network connecting approximately 20 million people) - for free.
But although citizens are expected to know and obey the law, and tax dollars are used to create and interpret the law in the courts, legal information is perhaps the most inaccessible publicly funded information. A private company is keeping judges' written decisions, known as case law, out of the public domain in order to continue its control over the computer assisted legal research (CALR) market. This monopoly restricts citizens' ability to access the case laws that form the basis of the precedent-based U.S. legal system. Although printed copies of judges' decisions are available in some public and law school libraries that are open to the public, high-priced computer services enable researchers to do legal searches and find specific cases more quickly, easily and efficiently.
West Publishing, an Egan, Minnesota-based publishing company, asserts a copyright over its system of citation, which is used in most of the courts across the country. Citation is an essential function of the U.S. judicial process. It is the means by which lawyers, judges and other interested parties can ensure they are all working from the same page when using legal cases as precedents. It is the page numbers of its version of court decisions, and a few editorial enhancements, over which West claims its copyright. Without these citations, judges' decisions are far less useful.
"[I]t is a fundamental part of our belief that no one should own the law, either outright or in practical effect," wrote Bob Oakley, the Washington, D.C. representative of the American Association of Law Libraries in a September 1994 letter to U.S. Attorney General Janet Reno. "Regrettably, the assertion of ownership of some parts of the published case law together with the requirements of courts and others to cite to certain privately published versions of the case law, have, in practical effect, given one publisher substantial control over the legal information market."
West's copyright assertion has been challenged in court, but its validity never resolved. Mead Data Corp., owners of the Lexis CALR system, challenged West on the issue of its copyright citation in 1987, but settled out of court, and the terms of the settlement are sealed. A more recent court case on West's copyright assertion filed in February 1994 by Matthew Bender Publishing, owned by the Times- Mirror Company, also resulted in an out-of-court settlement.
"There has been a clear pattern of settling with the Fortune 500 companies who can afford to litigate, and squashing the small publishers with no means to afford lengthy courtroom battles with a barrage of legal tactics," says James Love, director of the Taxpayer Assets Project (TAP), which advocates greater access to case law. TAP advocates a public domain citation system, with the courts assigning paragraph numbers for judicial decisions and any for-profit or non-profit entity permitted to offer computer search services that rely on the court's paragraph numbering.
Alan Sugarman, president of Hyperlaw, a New York-based legal publishing company, intervened in the Mathew Bender case but was left in limbo when the two companies settled. Hyperlaw cannot use the West citation system, and without use of the most widely accepted, and in some cases the only accepted, system of citation, Sugarman's company is unable to meet a key need of lawyers. Hyperlaw can become a supplemental source of information, but not the sole source. "West has a stranglehold on the CALR market and a stranglehold on innovation," says Sugarman.
West did not return calls from Multinational Monitor, but the company has aggressively defended its citation system monopoly elsewhere. From 1989 through August 1994, West Publishing, its WESTPAC political action committee and persons affiliated with West contributed $738,728 to key political campaigns. Four of the five U.S. members of Congress who wrote letters to Attorney General Janet Reno on behalf of West received a total of $45,482 in contributions from West, WESTPAC or individuals associated with West. Martin Sabo, D-Minnesota, led the list with contributions of $18,470, followed by Representative John Conyers, D-Michigan, $17,262, Rep. Jim Ramstad, R-Minnesota, $5,250, and Senator Dave Durenburger, R-Minnesota, $4,500.
Two public relations firms - the Kamber Group and Cordia Companies - have been hired by the already politically well-connected West to obscure the issue, maintain West's monopoly on legal citation and keep the law out of the public domain. When contacted, a representative of the Kamber Group, which lobbies on behalf of many labor organizations, said the firm was hired to lobby members of congress that leaned to the "left" and the Cordia Companies would lobby the "right."
West paints a picture of impending doom for the private CALR market if a public domain system of citation is established. Minnesota Governor Arne Carlson told Attorney General Reno in a September 1994 letter, "The effect would be to put scores of good companies out of business ... One of those companies is West Publishing, here in Minnesota." This is not a realistic scenario, evidenced by the fact that most publishers, including West's largest competitor, Mead, support a "vendor neutral" citation system. West profits would be hurt if it had to compete in an open market and could no longer charge monopolistic prices, but it seems unlikely that it would close down. "The nature of West's business will change, but West has too much talent, skill and capital to be knocked out of the market," says Hyperlaw's Alan Sugarman.
Meanwhile, across the United States, citizens fighting to assert their rights using the legal system must overcome a severe financial barrier presented by West's monopoly. Through its copyright assertion, West has created information haves and have-nots, and in the West world of legal citation, the vast majority of U.S. citizens fall into the have-not category.
- Ned Daly and Mike Ward