I would add a comment or two to Jamie's remarks.
It is very easy for someone to appear before a Congressional or court body
making policy and make general statements and leave certain impressions which
have no foundation or contradict other positions or statements of that person.
In those forums, there is little careful questioning and little attempt made
to ask speakers to explain prior inconsistent statements or even to indicate
possible bias or self-interest on the part of the person making the statement.
Frequently, statements are presented as "fact" when they are nothing other
than unsubstantiated conclusory argument. However, when these "facts" are
repeated often enough, they take on a life of their own.
As an example, Jamie Love has repeated to me recent conversations he has had
with a senior federal judge -- and two law librarian/professors whose names
would be well recognized here and who appear on the "panel" circuit. These
three individuals each were surprised and shocked to hear that West has indeed
asserted proprietary interests in the text of legal opinions appearing as part
of West "case reports" -- this despite the fact that I know that each of these
three has been so advised in the past -- perhaps a little cognitive dissonance
-- and perhaps to acknowledge this central fact would require these people to
alter their public positions and for the judge to change the policies followed
by his court. So, it is lot simpler to ignore the fact -- especially when in
pronouncements West denies that is claims a copyright in the text. West says
in essence, ignore what we do, just read our lips. But, among other things,
the 1988 litigation by West against Lexis is just one clear example where this
interest was asserted by West. So, it is not enough just to make the point
once, and assume it has been heard and digested. I made the point clearly and
explicitly in my statement to the House subcommittee in 1992. It was also
made explicitly in the HyperLaw complaint in the 1994 New York case. If these
statements were read, then these were not believed (in light of protestations
by West) or met cognitive dissonance. I am sure West will still maintain that
"it does not assert a copyright in the text of court opinions, but just is its
case reports that are part of its copyrighted compilations" -- but, the fact
is that West has and does object to someone copying the text of say 1000
opinions (but not digests and summaries) from 1000 case reports and for that
someone to republish those opinions on a commercial CD-ROM. Now perhaps West
can mount a convoluted argument to say that they are not claiming copyright,
but the effect is the same.
It seems to me that whatever language surrounds the West claims, is is
important for people such as this judge and these two law professors to
understand what West claims, and how their claims impacts innovation and
competition among authors, publishers, and consumers of legal information,
both primary and secondary sources. It does not seem to me healthy for a
judge to sit in the Judicial Conference with misconceptions as to what West
claims and for law professors to sit on panels and act as spokespersons with
similar misconceptions. Through this forum, the law-lib forum, it is possible
to explore over a period of time these claims and the basis of these claims.
I think it is also trivializing the discussion to say that pointing out the
West flip/flops "has almost reached the level of the childish 'Yes I Do/No You
Don't'", if that you were referring to that dialog.
That in just three weeks we have these statements as to first page citations
from West:
-- "is in the public domain" -- in oral argument before the Wisconsin Supreme
Court;
-- "is essentially in the public domain" -- in a subsequent brief before that
Court ; and,
-- "<expurgated>" -- in a posting on this list...
is not mere "Yes I Do/No You Don't'. Perhaps better would to describe this as
"Yes you may, no you may not."
Some say, well what difference does it make. Well, it seems to me that public
policy makers should have an informed view as a basis of making public policy.
To a certain extent, many public policy makers on these issues will look to
law librarians/professors for their advice.
It has been my objective, as much as possible, to introduce new information --
in recent weeks that has included the John B. West article, the excerpts from
the 1988 West v. Mead complaint, and the statements made before the Wisconsin
Supreme Court by West. This previously undisseminated information was not
repetitive in my view and was I hope viewed as constructive contribution to
the discussion.
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
Alan D. Sugarman Federal Appeals on Disc tm CD-ROM
President Opinions of US Court of Appeals
1993 to Date - All Circuits
HyperLaw, Inc. ®
P.O. Box 1176
New York, NY 10023
sugarman@hyperlaw.com 212-787-2811 212-496-4138(fax)
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
<---- Begin Included Message ---->
Date: Wed, 19 Apr 1995 20:01:39 -0700
From: James Love <love@Essential.ORG>
Reply-To: love@Essential.ORG
Sender: law-lib@ucdavis.edu
Subject: Re: Constructive discourse
To: jcjanes@ucdavis.edu
On Tue, 18 Apr 1995, Mary Jensen wrote:
> Actually what has caused me to stop reading is a combination of the tone
> and the fact that nearly all the arguments have been made repeatedly.
> It has almost reached the level of the childish "Yes I Do/No You Don't"
> arguments. Once the points have been made and responded to once or twice
> continuing to respond with the same arguments tends to cause people to
> tune out when they catch on to the repetition. And if repetition annoys
> the reader, it may even hurt your case.
Mary, in a number of cases there are some very important points which
people are trying to pin down. In part people are playing to the law-lib
list, and in part people are trying to "depose" interested parties for
use of the disclosures elsewhere. For example, West has used quotes from
this list extensively in its Wisconsin Briefs, and in motions before
Judge Preska in New York. I wanted to get West to say in public what
they had told me privately concerning the copyright of corrections.
Sometimes when it seems as though parties are beating a dead horse they
are trying to clarify something that is quite important. However, that
isn't to say that the debate is always concise, civil and thoughful.
But by and large, through this list, quite a bit of progress has been made
(IMHO), educating interested parties about the most important issues in
this dispute. 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
<---- End Included Message ---->
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