ON APRIL 18, 1994, DENIS J. KONOUCK <DKONOUCK@CAP.GWU.EDU> WROTE:
>> In the May 1994 issue of Wired Magazine (issue number 2.05)
>> there is a good article on West's lock on legal publishing
>> through its copyright of the pagination scheme of federal
>> court decisions.
>> If you are going to request a copy from someone I guess I
>> better give a full citation:
>> Wolf, Gary. "Who owns the law?". Wired, volume 2, issue 5,
>> (May 1994), PP. 98-101, 138,139.
>> This issue might not be out on the newsstand yet.
On April 17, 1994, I faxed (with a copy by U.S.P.S., i.e., snail
mail) the following letter to WIRED in response to Wolf's
article:
LETTER FOLLOWS
=================================================================
April 17, 1994
"Rants and Raves" Editor
WIRED Magazine
P.O. Box 191826
San Francisco, California 94119-9866
To the editor:
I had hoped that Gary Wolf's "Who Owns the Law?" (WIRED 2.05,
page 98) would help readers untangle the competing claims in the
debate over copyright protections for private-sector publishers'
pagination of public-domain legal text. Regrettably, Wolf
instead perpetuated misunderstanding.
As a lawyer, I have for many years used electronic and print
versions of West's publications, as well as those of West
Publishing Company's competitors. As a writer, I have also
written (in two textbooks I co-authored) about the electronic and
print versions of West's publications, as well as those of West's
competitors; my textbooks deal with most of the legal sources
discussed in Wolf's article. Perhaps most important in this
context, I am not employed by, and do not have any financial,
family, or other connections to, West Publishing or any of the
people or organizations identified in Wolf's article.
The key flaw in Wolf's treatment lies, I think, in his failure
to acknowledge the difference between citation and pagination, a
distinction critical to understanding this debate and a
distinction that West's critics consistently (and, I think,
deliberately) blur. Lawyers and others who write legal documents
routinely rely on citations to identify the legal and nonlegal
authorities used to support, refute, or explain something -- an
argument, or perhaps a principle of law -- contained in those
documents. In a common-law legal system largely built on
deference to precedential court decisions, citations play a
crucial role in maintaining the chain of law and logic that flows
through court decisions over the years. 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. In fact, contrary to
Wolf's specific assertion that "other publishers of legal
decisions are not permitted to show, in the margins of their
books or in the headers of their databases, parallel citations
that describe where decisions appear in West-owned books or in
the West-owned electronic database, Westlaw," other publishers
often include parallel citations to the corresponding documents
found in West's publications. For example, Lawyers Cooperative
Publishing routinely includes in its version of U.S. Supreme
Court decisions the parallel citation to West's version and to
the United States Reports version. Similarly, West includes in
its version of these decisions the parallel citation to Lawyers
Cooperative's version and to the United States Reports version.
(The public-domain United States Reports version of the Court's
decisions does not include any parallel citations to other
versions of those decisions.) Even at the height of West's
lawsuit against Mead Data Central over the use of West
pagination, court decisions available in LEXIS continued to
display in their citation field and in their screen headers the
parallel citations to West's case reporters. If HyperLaw's Alan
Sugarman (one of West's principal antagonists) wants to include a
parallel citation to West's case reporters in the document
headers on his CD-ROM version of court decisions, I doubt West or
anyone else would complain.
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). Moreover, as an
author who has collaborated in the design and pagination of his
own books, I know from experience that pagination must account
for many factors, including esthetic ones, and does not occur
mechanistically. In my view, these efforts make pagination, even
of public-domain material like court decisions, worthy of
copyright protection.
I suspect that similar (if not identical) considerations
attend the creation of a CD-ROM product. Having seen some of
Sugarman's comments relating to the pagination issue posted on an
Internet list, I find myself wondering what position he will take
if someone, adopting his philosophy, duplicates his CD-ROM
product of public-domain documents on a desktop CD-ROM publishing
system and offers the copies for sale at prices of, say, half or
a third of those Sugarman charges.
In a similar vein, I suspect James Love and the Taxpayer
Assets Project (TAP) would suddenly see merit in West's position
on pagination if, say, TAP assembled a collection of significant
public-domain documents bearing on an important public policy
issue, re-typeset and paginated the text into a new book format,
offered the publication for sale as a way to raise funds to
underwrite TAP's activities, and then found someone else had
photocopied the publication and offered it for sale at a price
much cheaper than TAP's.
In this regard, West practices what it preaches: although
West includes in its version of U.S. Supreme Court decisions the
citation to Lawyers Cooperative's corresponding versions, West
does not include any markers identifying the actual pagination
found in the corresponding Lawyers Cooperative documents.
Lawyers Cooperative follows the same policy with respect to
West's versions. Both West and Lawyers Cooperative include
markers identifying the public-domain pagination found in United
States Reports.
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.
Lawyers can easily acquire the U.S. Government Printing
Office's inexpensive public-domain version of federal statutes
and U.S. Supreme Court decisions, yet lawyers by the thousands
purchase expensive private-sector versions available from West
and Lawyers Cooperative. Why? Because West and Lawyers
Cooperative add to their publications useful features not found
in the public-domain version. Any value in West's (or any other
publisher's) pagination derives from the recognized editorial
integrity of the product and (for court decisions) the
accompanying indexing system, not the other way around. Mike
Rushford, of the Criminal Justice Foundation, can call that claim
(as he does) "bullshit," but I strongly suspect that neither he
nor his staff uses readily available (and cheap) public-domain
versions of federal authorities to do their research, even when
the lawyers have to cite those public-domain versions to the
courts.
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. But none of West's critics propose
creating public-domain indexes to accompany their public-domain
citation or pagination systems, leaving these systems (whatever
they turn out to be) looking like solutions in search of a
problem.
Sincerely,
/s/
Christopher G. Wren
cgwren@acm.org
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