To: Frank K. Edmonson
RFP Coordinator
Office of the Administrator for the Courts
State of Washington
FAX 360-664-0616
COMMENTS OF AMERICAN ASSOCIATION OF LEGAL PUBLISHERS
APRIL 28, 1995
RE: PROPOSED DRAFT REQUEST FOR PROPOSAL DATED APRIL 14,
1995
FOR SELECTION OF PUBLISHER
FOR THE WASHINGTON STATE COURT REPORTS
ANALYSIS OF PROVISIONS
AND THEIR IMPACT ON COMPETITION AND ACCESS TO THE LAW.
<p=1>
On April 14, 1995, the Office of the Administrator For
the Courts of the State of Washington released a Draft of a
Request for Proposals For Selection of Publisher of the
Washington Reports and the Washington Appellate Reports.
<p=2>
This paper, submitted on behalf of the American
Association of Legal Publishers, will analyze certain parts
of the Draft Request for Proposal that affect competition
and the public’s access to court opinions.
<p=3>
In summary, it is the position of AALP that the RFP
should be redrafted to provide as follows:
The RFP should not attempt to combine in a single RFP
(a) the requirements of publication of official
versions of opinions of Washington State Courts, and
(b) a procurement of legal research materials in book
and electronic form for use by some of the Washington
State Courts.
The print publisher should be required to include
official paragraph numbers in the text of the opinions.
The print publisher should be required to provide to
the State an electronic SGML or other ASCII tagged
version of the corrected opinions to be used by the
State and the public without restriction.
The proposal should separate print publication from CD-
ROM publication.
The print publisher may only be permitted to copyright
those summaries, headnotes, and digests prepared by the
print publisher, and no other material in the official
reports.
The print publisher should be required to (a) clearly
indicate all materials for which copyright is claimed
without ambiguity, and (b) to permit, as a fair use,
the temporary copying of the copyrighted materials by a
commercial competitor, where the purpose of the
temporary copying is to separate the copyrighted and
non-copyrighted materials, as long as no other use is
made of the copyrighted material and no permanent
copies of the copyrighted material are kept.
The CD-ROM proposal should focus on having the CD-ROM
publisher provide an authoritative and citable source
for new opinions in a non-proprietary format, that can
be accessed directly without proprietary search engines
and programs.
The proposal should not provide for retrospective
publication of the public domain case reports in CD-ROM
format.
Anti-competitive provisions of the RFP, which seems to
come close to a sole-source contract directed for the
benefit of established large law publishers, should be
eliminated from the RFP.
<p=4>
Not only is the market for primary case law reporter
materials, whether print, CD-ROM, on on-line, detrimentally
affected by certain provisions in the RFP, but also affected
is the ability to create and publish secondary legal
materials.
<p=5>
THE RFP COMBINES THE PUBLICATION OF PRINT AND CD-ROM THEREBY
LIMITING THE CD-ROM PUBLICATION TO COMPANIES WITH PRINTING
CAPABILITIES.
<p=6>
There are many companies with excellent capabilities in
the preparation and editing of opinions using existing
printing technologies that have evolved over the centuries.
On the other hand, there are other companies that have
developed and are developing CD-ROM and sophisticated search
and retrieval software programs. To combine these two
proposal into one limits the number of potential bidders.
In addition, companies with perhaps superior CD-ROM
technologies may not have superior legal editing
capabilities or any legal publishing capabilities. Among
other things, combining these two will have the effect of
limiting the technologies, creativity and innovation in the
electronic publishing arena.
<p=7>
THE RFP ESTABLISHES ELABORATE TECHNICAL REQUIREMENTS AS TO
CD-ROM PUBLICATION, RATHER THAN MERELY REQUIRING PUBLICATION
IN A FORM OF DATA THAT MAY BE READABLE OR CONVERTED TO BE
SEARCHED AND READ BY ANY SEARCH AND RETRIEVAL SOFTWARE.
<p=8>
The RFP Provides elaborate technical requirements in
Section 7.4. Another section has elaborate software escrow
requirements. Excerpts from Section 7.4 are attached as an
appendix. These are wholly inappropriate in a contract for
the official publication of opinions.
<p=9>
In addition, the technical requirement fail to include
innovative feature such as fuzzy searching and relevancy
ranking of searches. Some CD-ROM engines have these
capabilities, but do not have others arbitrarily required by
the technical standard in the RFP. The market place should
decide what is useful in a CD-ROM engine, and not the State.
Moreover, the State should not include technical requirement
that preclude the use of extremely useful search engines.
<p=10>
The RFP should focus on the data format to be provided
by the publisher, and should contemplate many other
publishers offering many CD-ROM or Internet-based products.
The State is overreaching when it begins to attempt to
dictate technical standards and desires for the Washington
State consumers and purchasers of the court opinion in CD-
ROM form. The State is among other things limiting
competition amongst providers of CD-ROM engines and anti-
competitively tying in the CD-ROM search engine market to
the case law publishing market.
<p=11>
If the State courts wish to have access to CD-ROM’s for
their own use, then the State should encourage competition
and innovation in the private CD-ROM market and should
purchase those CD-ROM’s from the company that can best meet
the needs of the State.
<p=12>
The technical requirements in the RFP are based upon
the current technologies which are undergoing rapid change.
Most significantly, this approach will seriously limit the
future case law access and search technologies available to
the citizens of the State of Washington.
<p=13>
What the publisher should be required to do is to make
the case law data available in a standard readable format
with appropriate tagging. Instead of requiring production
of a CD-ROM in a 1986 computer format about to be obsoleted
by the new generations of CD-ROM and useable on computer
operating systems about to be superseded, and using a
proprietary search engine based upon 1970’s concepts of how
data should be searched,. the State should be requiring that
the opinion data be presented in a universal recognized
ASCII based standard incorporated in ISO 646, ISO 6937/2 and
ISO 8879.
<p=14>
In other words, the data, ideally, should be published
by the Publisher in the Standard Generalized Markup Language
which is being supported by all major software vendors
including WordPerfect and Microsoft, the federal government,
international bodies, and, through a subset of SGML, known
as HTML which is used by software such as Netscape and
Mosaic on the Internet.
<p=15>
The market can then intervene to provide the data using
natural language search engines, fuzzy search engines,
relevancy ranking, neural networks, and whatever else the
future will bring. What the State through it publisher
needs to do is four things:
Retain in State archives an authoritative electronic
version of the opinions available in a non-proprietary
data format such as SGML, RTF, or another tagged ASCII
format.
Provide a unique authoritative way of citing the
opinions.
Provide a medium-neutral method of citing to the
internal parts of opinions.
Make the electronic version available to the public and
all publishers thereby expanding competition and
reducing the costs to citizens of Washington who access
law directly, or indirectly through their lawyers.
<p=16>
The State just has no business in dictating to the
market how the opinions should be searched and retrieved.
It would be appropriate to require that the data provided by
the publisher:
Clearly tag all copyrighted material so it may be
easily removed by those desiring to republish the non-
proprietary information.
Tag all of the pieces of information such as date,
court, judge, etc. that the State shows a concern with
in its elaborate technical requirements.
<p=17>
In other words, the State should keep its eye on the
information, and not on the technology. The best investment
the State can make for the future is to have opinions
archived in universally accessible data formats.
<p=18>
The RFP appears to be more of an RFP specifying CD-
ROM’s to be purchased or acquired by the State Court System.
Of course, the State Court is just one of the many possible
potential government purchasers of Washington State Case
law. What the Courts need to do is to place the
authoritative version of the opinions into the public
domain, and then let competition and technological
innovation determine how the case law will be delivered to
governmental and non-governmental consumers of the
information.
<p=19>
What the State Court is doing is mixing together two
issues : one is the responsibility of the already funded
state courts to make the court opinions available to the
public -- and two is the need of the State Courts to obtain
books and CD-ROM’s for use by the State Courts. These are
entirely separable. If the first issue is attended to in a
way to increase competition, then the second will naturally
occur, and at lower prices.
<p=20>
In addition, the RFP contemplates clearly that the CD-
ROM will make the information available only in a
proprietary format and only readable by those who have a
license for a particular proprietary search engine. It is
almost as if the State is encouraging that the opinions be
available in a special encrypted and passworded format that
could be read for example only by WordPerfect programs, and
could not be read by WordForWindows programs (or the
reverse).
<p=21>
The State should not endorse the publication of its
cases in a format that will require the reader to utilize
and purchase proprietary software products. For example, a
WordForWindows word processor can read a WordPerfect file,
and vice versa, because not special patented or copyrighted
software program is required to read those files. However,
this is not true with respect to, for example, a Folio
encoded CD-ROM disk. The information is bound up with a
proprietary engine, and one so proprietary, that in future
years, it may not be available or even readable.
<p=22>
Finally, if the Court feels that it is in its own
interest to be able to purchase the State reporters with
copyrighted headnotes, then the State could require that the
Print Publisher arrange for CD-ROM publication of the
opinions with headnotes and that the Publisher mandatorily
license the copyrighted headnotes to any other CD-ROM
publisher. The royalties would be set at a reasonable
percentage reflecting what authors in general are paid for
original works in the publishing industry, as adjusted by
the percentage that the original works bear to the total
quantity of works in the publication. [Note: The preceding
paragraph was not discussed with the AALP board, and,
therefore, is the view of this writer only.]
<p=23>
THE RFP DOES NOT PROVIDE FOR PARAGRAPH NUMBERING OF THE
OPINIONS SO AS TO MAKE A PIN-POINT CITATION AVAILABLE
IMMEDIATELY AND TO PROVIDE FOR A MEDIUM-NEUTRAL CITATION.
<p=24>
The RFP states:
4.2.1 Subject to the discretion of the Reporter
of Decisions,
the Publisher shall continue to utilize the
system of
uniform pagination reflected in the current
publication of
Advance Sheets and bound volumes for the
Washington
Reports, 2nd Series, and Washington Appellate
Reports.
<p=25>
Using pagination as a pin-point citation is not medium-
neutral. Independent experts who have studied the issue of
a medium-neutral pin-point citation have overwhelming
supported paragraph numbering as the most effective medium
neutral citation. Paragraph numbering is indeed being used
with great effectiveness just across the international
border in British Columbia.
<p=26>
It would be quite easy were the print publisher to
insert paragraph numbers -- or, indeed, if the courts
themselves inserted paragraph numbering which would be
included in the official reports.
<p=27>
We refer to the reports of the Wisconsin State Bar, the
American Association of Law Libraries, and the
Administrative Offices of the United States Court which
discuss the reasons why paragraph numbers are a superior
means of citation of case reports. If these documents have
not been made available to you , please let us know and we
will provide copies.
<p=28>
THE RFP DISCRIMINATES AGAINST PUBLISHERS WHO DO NOT PUBLISH
OTHER LEGAL MATERIALS WHICH THE STATE MAY WISH TO RECEIVE AT
NOT ADDITIONAL CHARGE.
<p=29>
The RFP provides:
1.9.2 The Publisher shall also provide the
Reporter of Decisions
with up to 10 copies of any of the Publisher's
publications to which reference is regularly made
by the
Publisher in editorially enhancing the opinions
in accord
with these specifications.
<p=30>
The provision would seem to imply that the State is
expecting the Publisher to provide, in essence, non-
quantified rebates of other products published by the
Publisher. This provision automatically favors bidders who
publish the largest number of other products, e.g., West
Publishing Company and Lawyer’s Cooperative. Indeed, the
very fact that the number stated is “10” shows that this
provision is a transparent attempt to obtain law libraries
for the members of the highest Washington State Court.
Interestingly, there are many other agencies in the State of
Washington who will not benefit from this arrangement --
they will have to purchase the same products on the open
market.
<p=31>
Because there are subjective elements in the
determination of who receives the contract, permitting this
factor to be included in the consideration of who wins the
contract is essentially validating a factor which favors
West Publishing Company, and to a lesser extent Lawyers
Cooperative Publishing.
<p=32>
The number of “free” publication rebated to certain of
the courts should not be permitted to be a factor in the
selection of the publisher of the official reports of the
State.
<p=33>
THE RFP DISCRIMINATES AGAINST POTENTIAL PUBLISHERS WHO DO
NOT PRESENTLY HAVE ACCESS TO ELECTRONIC VERSIONS OR PRIOR
VOLUMES OF THE WASHINGTON REPORTS AND THE WASHINGTON
APPELLATE REPORTS.
<p=34>
The RFP provides:
7.2.2 Retrospective coverage of Washington
Reports, 2nd Series,
and/or Washington Appellate Reports, in the CD-
ROM edition
of the Official Reports or Washington Appellate
Reports
shall be issued within one year of the effective
date of
the contract for publication of the Official
Reports or
Washington Appellate Reports and Advance Sheets.
7.2.3 The Reporter of Decisions shall have the
option of
requiring, at any time during the term of the
contract for
publication of the Official Reports or Washington
Appellate Reports and Advance Sheets, that
retrospective
coverage of Washington Reports, 1st Series shall
be
issued. ...
<p=35>
Quite clearly, a publisher that already has the text of
the prior opinions converted electronically has a distinct
cost advantage in bidding on the contract. Second, there
are already companies publishing the earlier reports on CD-
ROM. The effect of what the State is doing here will be to
engage in unfair competition as per those existing
companies. The Court and consumers can now purchase CD-ROM
versions of the Washington State opinions --- what possible
purpose can be served by tying in the print publication of
new opinions to the publication of prior opinions on CD-ROM?
THE RFP DISCRIMINATES AMONGST PUBLISHERS BASED UPON THE
TECHNOLOGY USED TO CONVERT TEXT TO ELECTRONIC DATA, RATHER
THAN UPON THE QUALITY OF THE DATA PROVIDED.
<p=36>
The RFP provides”
SECTION 6.4 OPTICAL SCANNING
Optical scanning may only be used in producing the
Official
Reports or Washington Appellate Reports, including the
CD-ROM
edition, upon demonstrating to the satisfaction of the
Reporter of
Decisions that the accuracy rate for the scanning
process will be
99.95 percent or better, and that a satisfactory
independent process
will be used in conjunction with the scanning process
to identify and
resolve scanning errors. Optical scanning may only be
used in the
production of the Official Reports or Washington
Appellate Reports
with the prior written approval of the Reporter of
Decisions.
<p=37>
This provision is highly anti-competitive and seems to
be directed at any CD-ROM publisher who has already used
scanning, and the ability of any such CD-ROM publisher to
enter into a joint venture with other print publishers so as
to comply with the requirements of the contract.
Again, this smacks at “sole-source” contracting.
<p=38>
THE RFP MAKES NO PROVISION FOR THE STATE OF WASHINGTON TO
ASSUME CONTROL OF ELECTRONIC VERSIONS OF THE CORRECTED
OFFICIAL TEXT OF OPINIONS.
<p=39>
The RFP states:
4.6.5 No copyright or other proprietary right
shall be procured
or claimed with respect to the text of the
opinions
published in the Official Reports or Washington
Appellate
Reports; no copyright or other proprietary right
shall be
procured or claimed with respect to the volume
numbering
or the pagination of opinions in the Official
Reports or
Washington Appellate Reports (i.e. "point page"
references
within opinions).
<p=40>
First, the RFP makes it clear that substantial effort
on the part of judges and other paid employees will go into
creating the polished official final product -- indeed,
galley sheets will even be presented to the State to make
corrections. Thus, the cleaned and corrected text is
accomplished with substantial input from employees of the
courts.
<p=41>
BUT THEN, THE STATE DOES NOT DO ANYTHING AT ALL IN THE
CONTRACT TO GET BACK FOR ITSELF FOR THE BENEFIT OF THE
PUBLIC THE CORRECTED VERSION OF THE OPINIONS IN ELECTRONIC
FORM. This is essentially a give-away by the State to the
private publisher.
<p=42>
The RFP does not go far enough. It should also require
that the Publisher agree that it is a fair use under the
copyright laws for commercial competitors of the publisher
to scan into their computers pages from the official
reporter that may include copyrighted material, as long as
the commercial competitors do not use the copyrighted
material, and are scanning only for the purpose of obtaining
the uncopyrighted text of opinions.
<p=43>
Most significantly, the draft RFP solicits proposals
not only for the publication of future opinions of the
Washington courts in print, and not only for electronic
versions of future opinions, but also for the retrospective
publishing of the opinions in CD-ROM format.
CONCLUSION
<p=44>
The foregoing are limited comments provided based upon
the short notice what AALP had in order to respond to the
RFP. We hope that the State will reconsider its approach,
as well as some of the basic premises reflected in the RFP.
American Association of Legal Publishers
April 24, 1995
By
Alan Sugarman
President
HyperLaw, Inc.
P.O Box, 1176
New York, NY 10023
212-787-2812 Fax 212-496-4138
info@hyperlaw.com
APPENDIX
EXCERPTS FROM SECTION 7.4 TECHNICAL REQUIREMENTS:
ISO 9660 standard, HFS standard, ... ISO/IEC 10149
standard, or an equivalent standard, for error
correction ... MS-DOS and OS/2 operating systems ...
The Apple Macintosh version shall resemble other
typical Macintosh applications...searching for exact
words in the opinion data and any indexed field the
name of the court, and the name of the authoring
justice ... dates in a field that indicates the month,
day, and year that an opinion was filed utilizing
"Boolean operators" in search expressions, ...
specialized syntax, .."wild card" and universal
characters in search expressions, editing a search
without reentry, saving a search for later use, and
displaying the total number of search request "hits"
. using proximity operators ... "nesting" search
terms by using parentheses, to a minimum of five
levels. ...At intervals of no more than five seconds,
the capability of determining that a search is under
way ... aborting a search and receiving a confirmation
. a list of search "hits" ... to go directly to a
specified page ... the capability of retreating from a
multilevel search ... document how the Widows interface
is ... being implemented, e.g., via ATA standard 89-
9C.WINCOMM-R2-1990. ... usable on personal computer
local area networks, including those produced and
currently supported by Microsoft, Novell, 3Com, and
Banyan. ... licensing terms for local area network
configurations ... price of a local area network
version of the product shall cover assistance with
installation on the local area network... product's
search software to locate, load, and play multiple
discs (e.g., "jukeboxes," disc cartridges, or disc
drive towers)... the search software shall identify the
disc ...citation-checking information shall be
incorporated in the CD-ROM edition. ... the
installation procedures shall automatically detect and
utilize previously installed personal computer
programs, and any "autoexec.bat" and "config.sys" files
shall be created or updated, as needed, without damage.
.User support for the CD-ROM edition shall be
provided by a toll-free number, on-line assistance, or
both.
Page 13 of 9
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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)
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
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