This was the TAP letter on the Wisconsin public domain citation proposal.
jamie
March 30, 1995
Honorable Supreme Court Justices
Wisconsin Supreme Court
231 E. State Capitol, Room 231 East
Madison, WI 53702
Dear Justices:
This letter concerns the proposal in Wisconsin for a public
domain database and a vendor neutral citation system. I am
neither a lawyer or a publisher of legal information. I am an
economist working for the Center for the Study of Responsive Law,
a Washington, DC public interest group which is run by Ralph
Nader, and Director of its Taxpayer Assets Project. Although I
am not a lawyer, I often find that it is useful to read the law,
and in many areas it is difficult to comment on public policy
issues without some understanding of legal issues. I ask lawyers
to provide us with advice, and I also read statutes and court
cases myself. There is no law library in my office. I often
work at home, without ready access to a law library, and I also
work evenings and weekends, when public law libraries are closed.
Therefore, I am very interested in measures that will make legal
information more widely available to the public.
In 1991, I began asking the federal government to use electronic
information technologies to give the public better access to
legal information. This has been part of a large effort to
encourage government agencies to use computer technologies to
provide citizen access to government information. Over the past
several years there has been much progress, as many executive
branch agencies, state legislatures and even the Congress of the
United States have discovered the vast citizen interest in access
to government information. For example, earlier this year the
Library of Congress began THOMAS, which provides citizens with
online access to the full text of bills pending before Congress,
the Congressional Record and other documents, using the Internet.
In the first 50 days of this service, it received 1 million
requests for information. The Library of Congress Thomas system
follows earlier initiatives in California, Michigan and other
states to provide citizens with access to legislative
information.
Another important initiative involved the SEC's EDGAR database of
corporate disclosure documents. The National Science Foundation
funded a project at New York University (NYU) to put these
records on the Internet, where they are distributed for free.
Today, the NYU EDGAR project disseminates more than 10,000
documents per day to citizens. The EDGAR project was important
because it involved a very large database. Indeed, in a single
year the SEC EDGAR system will receive an estimated 65 gigabytes
of data, which is larger than the body of the past century of
published historical case law from the federal courts.
In our own investigations into the barriers to public access to
court opinions, we found that it was the government which first
developed Computer Assisted Legal Research (CALR) systems. In
1964, the Air Force began Finding Legal Information Through
Electronics (FLITE), the nation's first computer assisted legal
research program. This was followed by the Department of Justice
JURIS program, which was created in 1971. The private sector's
entry in this market began with LEXIS in 1973. WESTLAW did not
become a product until 1975, and it was developed for West by
persons who worked on the Department of Justice JURIS System.
West actually obtained its copy of the database of federal case
law from the Air Force, for free, on an exclusive basis.
Today there are many firms that have entered or want to enter the
market for CALR, but not nearly as many as there should be,
because of the enormous problems in obtaining permission to
publish the law. Statutes from several states have been
copyrighted and West Publishing claims that the "corrected" text
of opinions that it publishes, and the page numbers in its bound
volumes of opinions, are owned by the West Publishing Company.
As a result, the public pays between $4 and $5 per minute to
obtain access to "corrected" and "citable" court opinions. These
prices would fall dramatically if the database was in the public
domain. For example, Lawyers Legal Research charges $10 per hour
for court slip opinions, and Hyperlaw, a CD-ROM company, charges
$195 for 21,000 federal circuit court slip opinions on CD-ROM.
If the barriers to entry in this market are eliminated, every
public library will have the opportunity to become an accessible
law library, at a very low cost.
For courts to "free" the law, three things must be done. First,
courts must prevent any private party from asserting ownership
over the text of the official versions of court opinions.
Second, courts must create a public domain database of the
opinions, including historical records. Finally, courts must
provide a way of identifying both the opinion itself and the
location of text within an opinion.
West has mounted an enormous attack on the Wisconsin proposal for
a public domain database and a public domain citation system. We
hope that Wisconsin rejects many of the spurious and self-serving
attacks on the proposed system, and moves forward, to "free the
law."
There are four aspects of the Wisconsin proposal that I will
speak to.
1. It is not costly for a court to disseminate opinions
electronically, or to retain an archive of opinions. In the
attached Order, the federal Seventh Circuit Court of Appeals
says it costs less than $500 per year for the court to
maintain a computer bulletin board with four years of court
opinions and other information. It may cost more in
Wisconsin, but this can hardly be much more expensive. It
is irresponsible for a court to not have a database of its
own opinions. These are public records, and the public
should have some public source for the underlying records.
2. The most important citation issue for Wisconsin is the
paragraph numbering proposal. This is widely supported by
proponents of a public domain citation system. In our view,
it is a mistake rely upon an automated "labor free" system
of paragraph numbering. We believe that it will require
some administrative work, largely because of ambiguities
with respect to what constitutes a paragraph. But it
cannot be costly for a court clerk to simply insert the
markers for the paragraph numbers. This is now being done
successfully in the federal Court of Military Appeals
(published by West) and in British Columbia (published by
Thomson).
3. The identifier for the opinion can be done in any number of
ways, so long as it is unique. The sequential numbering
system seems appropriate, but other systems may do as well.
This is a basic responsibility of a public agency which
expects the public to recognize its records as law.
4. So long as the courts provide dial-in access, and anyone is
allowed to take the data and redisseminate the information,
there will be an abundance of inexpensive ways for lawyers
to get access to states' case law. Within a very short time
the cases will be available for free from bulletin boards
and Internet sites available via desktop computers and
modems, and publishers will also market paper based versions
of the cases. This will vastly expand access for everyone,
and only harm the incumbent vendors who now charge excessive
prices to search legal information.
We are attaching several news stories and other documents which
provide background on these issues. As you will see, this is
part of a much larger battle over broader public access to legal
information. Thank you.
Sincerely,
James Love
Director
Taxpayer Assets Project
----------------------------------------------------------------------
James Love, TAP; internet: love@tap.org
P.O. Box 19367, Washington, DC 20036; v. 202/387-8030; f. 202/234-5176
12 Church Road, Ardmore, PA 19003; v. 610/658-0880; f. 610/649-4066
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