Time: Sat Mar 15 15:29:28 1997
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Date: Sat, 15 Mar 1997 15:22:06 -0800
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Cost of the West Monopoly for Citing Federal Courts (fwd)
<snip>
>-----------------------------------------------------------------
>Info-Policy-Notes - A newsletter available from listproc@tap.org
>-----------------------------------------------------------------
>INFORMATION POLICY NOTES
>March 14, 1997
>
> Here are the CPT Comments on the Public Domain Legal
> Citation. We spell out in some detail the costs of
> the West monopoly for citations to federal Circuit and
> District Courts, based upon the fee schedule from the West
> Complusory license.
>
> James Love (love@tap.org, 202.387.8030)
>
> --------------------------------------------------------------
>
> Consumer Project on Technology
> P.O. Box 19367, Washington, DC 20036
> http://www.cptech.org
> 202.387.8030
>
>March 14, 1997
>
>ABA Citation Resolution
>Suite 4-512
>Administrative Office of the U.S. Courts
>Washington, DC 20544
>
>via fax, 202/273-1555
>via Internet: citation@ao.uscourts.gov
>
>Dear members of the U.S. Judicial Conference:
>
>We are writing to express our support for a public domain
>citation for court opinions. We are also requesting an
>opportunity to testify at the public hearing on April 3,
>1997.
>
>We work for the Center for Study of Responsive Law (CSRL),
>an organization which was created by Ralph Nader in 1968.
>By training, one of us is an economist, another is a lawyer,
>and a third is a researcher who will later enter graduate
>school. Each of us hope to benefit from the adoption of a
>public domain citation. At CSRL, we work with the Consumer
>Project on Technology (CPT) and the Taxpayer Assets Project.
>We have been involved in disputes over the public's access
>to court information since 1991. We have been engaged in
>countless controversies over citations to judicial opinions,
>public access to government databases of court decisions,
>assertions of intellectual property in court opinions and
>citations, and other related issues.
>
>It was at our urging that a number of legal publishers,
>librarians, lawyers, and consumer groups met in Washington,
>DC on October 19, 1994, to determine if a consensus could be
>reached regarding a vendor neutral public domain citation
>for court opinions. The groups that met were seeking to
>liberate the law from a private monopoly, and to adopt a
>citation that would accommodate a revolution in information
>systems
>
>On that day agreement was reached that a new citation should
>be based upon paragraph numbering, and court assigned
>sequential numbers to opinions. Subsequently, the American
>Association of Legal Publishers (AALP), the American
>Association of Law Libraries (AALL), the Department of
>Justice (DOJ), several state bar associations and recently
>the American Bar Association (ABA) have all endorsed
>virtually the same public domain citation. There is a
>strong consensus that the ABA recommendation should be
>adopted by the Court.
>
>In the Notice in the Federal Register, the Judicial
>Conference asks:
>
>1. Whether the federal courts should adopt the form of
>official citation for court decisions recommended by
>the ABA resolution; and,
>
>2. The costs and benefits such a decision would have on
>the courts, the bar, and the public.
>
>Question number 1 is easy. Yes, the federal courts should
>adopt the form of citation recommended by the ABA. Everyone
>who believes it is time to adopt a public domain citation
>has endorsed the ABA approach.
>
>Question number 2 asks for cost benefit information. The
>benefits for the public are better and cheaper access to
>legal information. The federal judiciary and indeed all
>branches of government are large consumers of legal
>information. The prices for these services would be much
>less if the courts did a better job of disseminating court
>opinions. This would save the public money as taxpayers.
>The public too would benefit from less costly access to
>legal information. It is very expensive to buy high priced
>services like Westlaw and Lexis, and a public domain
>citation would promote competition. It is also costly to
>travel to law libraries, particularly if you don't have a
>law library close by, and if you place a premium on your
>time. Plus many Americans don't live close to a law
>library, or the law libraries have restricted access. A
>public domain citation is one step toward a more complete
>and modern approach to the dissemination of federal court
>opinions. In our view, all federal court opinions should be
>freely available on the Internet, at no charge, with a
>vendor and technology neutral public domain citation. This
>is the direction that the courts should move toward.
>
>In these comments, we will focus on the current monopoly on
>legal citations. As you know, West Publishing is the
>courts' de facto reporter for federal circuit and district
>court opinions. Over the past twelve years, West has
>engaged in endless litigation to support its contention that
>it "owns" the citations to the past 75 years of federal case
>law. We believe the West copyright claim will ultimately be
>rejected by the Courts, but we are years from a final
>resolution of this issue. Meanwhile, West Publishing is
>seeking sui generis database protection laws in the United
>States and before International bodies. West hopes these
>efforts will overcome any setbacks in its copyright
>litigation. Thus, the Court must recognize the continued
>risk to the public of a system that permits a private
>commercial entity to "own" something as fundamental as the
>citations used for federal court opinions.
>
>The United States Department of Justice DOJ recently
>negotiated a compulsory license for the West legal
>citations. These licenses provide an insight into the cost
>of the citation monopoly. Under the proposed consent
>degree, West will be permitted to charge 4 to 9 cents per
>1,000 characters, per year per published product, for the
>use of its page numbers. New publishers will begin paying 4
>cents, but the rates soon escalate to 9 cents, plus
>inflation.
>
>CPT has made some rough estimates of the cost of the
>license. We examined one case each from 1935, 1955, 1975,
>1985 and 1995, to determine the number of characters per
>page in various West reporters, which featured changes in
>fonts and paper size. The opinions in this small sample
>have 2,491 to 3,802 characters per page, and an average of
>5.0 to 5.3 characters per word. At 9 cents per 1,000
>characters, this works out to $.22 to $.34 per page for each
>opinion. This understates costs, because the West license
>requires payment for special WESTLAW non-printing computer
>control codes, and we do not know how much this increases
>the effective character count.
>
>Next, we looked at every 100th F.2d and F. Supp. from Vol. 1
>to the present, and counted the number of pages and cases
>per volume. For F.2d, the average page length was 3.8 for
>opinions before 1969, 4.0 for opinions between 1969 and
>1983, and 5.6 for opinions after 1969. For F. Supp., the
>average page length was 4.3 for opinions before 1969, 6.0
>for opinions from 1969 to 1983, and 9.3 for opinions from
>1983 to 1996. Using these estimates for the length of
>published court opinions, we reckon the average cost of a
>West cite per opinion to be (using our $.22 to $34 per page
>range):
>
>
> Table 1
> Annual Cost to "Rent" West Cites
> for Average Size Opinion
>
> F.2d F. Supp.
>
> $.22 $.33 $.22 $.33
>
>Before 1969 $ .84 $1.23 $.94 $1.41
>Between 1969 and 1983 $ .88 $1.32 $1.31 $1.97
>After 1983 $1.23 $1.84 $2.05 $3.07
>
>As one might expect, there is considerable variation around
>the mean. For example, an opinion like 700 F.2d 1 is 32
>pages, with 95,048 characters, or 2,970 characters per page.
>The cost of the West cite, without accounting for West
>control characters, is $.27 per page, or $8.55 for the
>opinion. Of course, as indicated, this is only the cost to
>"rent" the cite. For CD-ROM or online "products," the rent
>must be paid every year.
>
>Let us look at the cost of the West monopoly over time. In
>recent years, the average length of a published opinion has
>increased. In 1000 F.2d, the average opinion length was 8.8
>pages. For 900 F. Supp. (the last year we examined) the
>average opinion length was 11.2 pages. The cost of a West
>cite for these opinions, using the $.27 per page mid-point
>figure, would be $2.38 for the circuit court and $3.02 for
>the district court. This fee would be paid every year, for
>every West published product. What is the present value of
>the stream of rental payments for the average citation? If
>one assumes a discount rate of 10 percent, and an inflation
>rate of just 2 percent, the present value of the future
>stream of income from the citation would $29.75 for the
>Circuit Court opinions and $37.75 for the District Court
>Opinions. If West issued just ten licenses for the opinions
>(a firm that publishes both CD-ROM and online opinions needs
>two licenses), the present value of the citation rentals
>would be $297.50 for the Circuit Court and $377.50 for the
>District Court.
>
>At present the federal circuit courts issue more than 7,500
>published opinions per year, and the federal district courts
>issues at least another 7,500 published opinions per year.
>The cost of one annual rental payment for these published
>opinions would be $17,850 for the Circuit Court, $22,650 for
>the District Court opinions, or $ 40,500 for both courts.
>Of course, this is just for a single user. If we have just
>10 license holders, the cost of the licenses to rent these
>citations will be $405,000 per year. The present value of
>10 licenses to cite a single year of federal opinions is
>then $5,062,500. The $5 million represents the present
>value of rental costs that the public will have to pay to
>West Publishing for the privilege of citing one year of
>federal law. For one decade of case law, this adds up to
>$50 million. This is a high price to pay to simply avoid
>numbering opinions and paragraphs.
>
>There are other problems with the current monopoly. Under
>the West compulsory license, West Publishing does not have
>to issue licenses to persons who would just put opinions on
>the Internet for free. Indeed, West has been very
>aggressive about the use of its citations on the Internet.
>A student from Buffalo SUNY recently reported that West
>Publishing had asked for $8 per "hit" to use a West cite on
>a single opinion put on a Web site. If true, this is
>absurd. But why should we give West Publishing the power to
>tell a college student that they cannot publish a court
>opinion on the Internet for the benefit of everyone who
>finds it interesting? The courts need to do something to
>fix this obvious problem.
>
>Of course the more basic issue concerns the Court's
>responsibilities toward the public. Is not the law the most
>public of all public documents? Isn't it unseemly for the
>court to operate as a profit center for a commercial entity?
>How do we explain this system to high school students who
>are trying to learn legal research on the Internet? Why is
>this taking so many years to resolve? Why has the judiciary
>been so reluctant to protect the public in these matters?
>
>For all of the above reasons, we urge the U.S. Judicial
>Conference to approve the public domain citation proposed by
>the ABA.
>
>
>Sincerely,
>
>
>James Love
>Director
>
>Todd Paglia
>Staff Attorney
>
>Alex Roth
>Research Assistant
>
>++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
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>
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>
>
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========================================================================
Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness
email: [address in tool bar] : Eudora Pro 3.0.1 on Intel 586 CPU
web site: http://www.supremelaw.com : library & law school registration
ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best
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