HypweLaw also had filed a FOIA for the Flite Supreme Court opinions in
1993 -- which request was denied.
My request was only for those opinions that came from non-West reports,
i.e., the United States Reports prepared by the Reporter of the United
States Supreme Court.
I was never able to get a straight answer from the Air Force as to what
was their source for Supreme Court opinions -- US Reports or the West
Supreme Court Reporter. I think it was the former. Our request was
absolutely clear -- only non-West material was requested, but, the
request was denied by the Air Force. [One Air Force officer told me that
if we requested a free flight in an air force fighter bomber, that would
be denied as well. Honest, he equated a request for a data base of
Supreme Court opinions with a request to fly free in a military
aircraft. I swear to it.]
We did not pursue the FOIA request in litigation because HyperLaw ended
up intervening in the copyright litigation against West in New York.
Accordingly, as HyperLaw indentified important documents such as the 1976
Flite/Air Force agreement, it has passed them on to other parties, and
provided that agreement to Love.
As an intervenor in NY, HyperLaw added a cause of action not covered by the
original Matthew Bender complaint -- that the text of the decisions as
they appear in the West reporters absent headnotes, page numbers etc. are
not copyrightable by West. I.e., they may be copied by anyone such as
FLITE without infringing a right of West. HyperLaw has filed a notice
of facts not in dispute as a preliminary to filing a motion for summary
judgment on this issue. That is one of the documents that upon the
request of West, Judge Preska has continued to seal. One reason HyperLaw
wishes to have the document unsealed is so that others may have
sufficient facts available so that there will be ammicus briefs filed at
the district court level, not just the appellate court.
Interestingly, in 1992 the text issue was also ignored in the Hearings
for H.R. 4426 -- except, it was discussed by HyperLaw in its written
statement. See page 324-326 of the Hearing: "Moreover, the bill's
language ignores the claims by West and other publishers tha their
copyright on case reports also includes 'sweat of the brow' efforts such
as correcting spellings and typographical errors, adding parallel
citations, and incorporating amendments of the decision in a single
restated decision." Hearing, Committee on the Judiciary, House of
Representatives, H.R. 4426, MAY 14, 1992.
[Also, in that statment, page 328, HyperLaw also asked the Judiciary
Committee to investigate the Devitt award. "In an era of ethical
scrutiny and awareness, we do not know how such an award is permitted,
and perhaps the Juidiciary Committee should look into this."]
It was a little like cutting down a tree in a forest with no one around.
Alan D. Sugarman
President
HyperLaw, Inc. ®
Publisher of Federal Appeals on Disc tm CD-ROM
sugarman@hyperlaw.com
212-787-2812
212-496-4138 (fax)
On Tue, 4 Apr 1995, James Love wrote:
> On Tue, 4 Apr 1995, Cindy Chick wrote:
> > The government did not create the original "database" of case
> > law information. West Publishing compiled the "database" of
> > information in hard copy, called Federal Reporter and Federal
> > Supplement. What the government did was key in the compiled
> > information.
>
> I look at it like this. West did not "create" the opinions in
> the first place, they merely keyed the data for a paper publication.
> The Courts "created" the opnions. The West "paper" database, consisted
> of court decisions, which are in the public domain, plus its own
> value added contributions. What the government did, was key in
> decisions that the courts the created in the first place.
>
>
> > That must have been much easier and less
> > expensive than trying to collect and compile Federal caselaw,
> > which is likely why the Air Force entered into the agreement to begin
> > with.
> >
> We believe, as do others, that from 1964 to September 1974, there
> was no agreement with West. But whether or not it was easier or harder
> to collect the data from books rather than court files is the wrong
> question. First, did West act as a reporter for the courts? Second, did
> the courts instruct West which cases to publish? Third, did West ever
> obtain any copyright over the text of opinions?
>
>
> > And the agreement clearly states that the information is not to
> > be provided to, or used by, anyone other than the Air Force.
> >
> Why yes it did. You will find that West did not have court opinions
> online until 1978, and it is generally understood that it used the Air
> Force work product to begin its own service. The fact that no own else
> was allowed to obtain the information after 1974 raises two interesting
> questions. First, what happens to the pre-1974 data collections, and
> second, did the 1974-6 contracts preclude disclousre of the data under FOIA?
> That will be determined a federal judge, and one higher than the District
> Court.
>
> > Are you suggesting that the government break the contract, that was
> > entered into in good faith, by distributing the information to
> > West's competitors?
>
> I think that the Air Force should abide by the Freedom of Information
> Act, which protects the public. The Air Force now has about 200 years of
> Supreme Court opinions. I think that these should be available to
> anyone, including West competitors. Are you suggesting that the Air
> Force prevent West competitors from receiving public domain information,
> even when it is not protected by contract (such as the pre-1974
> collections) or the post 1994 collections?
> jamie
>
> ----------------------------------------------------------------------
> 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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