American Association of Legal Publishers
282 North Washington Street
Falls Church, Virginia 22046
Voice (301) 652-3453
Fax (301) 652-2970
February 13, 1995
FOR IMMEDIATE RELEASE
JUSTICE DEPARTMENT TELLS HOUSE OVERSIGHT COMMITTEE
THAT WEST PUBLISHING PROVISION WOULD LIMIT ABILITY OF
FEDERAL AGENCIES TO RELEASE INFORMATION TO PUBLIC
The U.S. Department of Justice has released the text of
its letter to William F. Clinger, Jr., Chairman of the House
Committee on Government Reform and Oversight, regarding the
West Publishing Provision of H.R. 830, the Paperwork
Reduction Act of 1995.
The Justice letter, dated February 9, 1995, states that
"the proposed amendment could fundamentally alter the manner
in which information is considered for public disclosure
under the Freedom of Information Act (FOIA) even though FOIA
presently protects proprietary interests." "The result,"
the Justice Department concludes, "would be a new limitation
on the ability of federal agencies to disseminate useful
information to the public...."
The full text of the Justice Department letter follows.
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, DC 20510
February 9, 1995
The Honorable William F. Clinger, Jr.
Chairman
Committee on Government Reform and Oversight
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This provides the views of the Department of Justice on proposed
section 3518(f) of title 44, United States Code, in H.R. 830, the
"Paperwork Reduction Act of 1995." We respectfully request that this
section of the bill be deleted.
The proposed amendment has been advocated by West Publishing
Company to allay unfounded concerns about steps West fears the
Department of Justice may be contemplating that would adversely
affect its proprietary products. Let us be very clear about this:
the Department has no plans to replicate the West Publishing Co.
database or otherwise to develop either its own comprehensive
database or alternative legal citation system. In disseminating
information, the government should not undermine competitive markets.
As OMB Circular A-130 directs, agencies should not expend public
resources to fill needs that have already been met by others in the
public or private sector. Moreover, agencies have a responsibility
not to undermine the existing diversity of information sources. This
includes respecting intellectual property rights, particularly
copyright, which may exist in private-sector information products
purchased or utilized by the government.
The Department is deeply concerned, however, that enactment of
this unnecessary provision would have significant unintended
consequences and may greatly and unduly restrict the federal
government's ability to utilize public information. Read literally,
for example, it would permit West Publishing Company to restrict the
government's ability even to cite to judicial opinions using West's
widely accepted citation system or from making use of West
publications of those decisions -- even if, as in some jurisdictions,
those publications are the only reports of those decisions. (West
says that it will not do this, but the legislation would allow it.)
The proposed language, moreover, provides many more rights to
West (and others who compile and sell public information) than any
other copyright owner would have under the law and, particularly puts
the federal government at a disadvantage. It effectively reverses,
at least with respect to the federal government, the distinction
drawn in 3Feist Publications, Inc. v. Rural Telephone Service Co.3, 499
U.S. 340 (1991), between original works and products that result when
"sweat of the brow" is applied to government information. /1/ The
amendment also appears to obliterate the "fair use" doctrine with
respect to works containing government information -- with the result
that works based upon 3public information, created at public expense,
would be less accessible for use by the government than would a work
containing no public information, created at no expense to the
public3, and not made available by a government agency. /2/
Additionally, the proposed amendment could fundamentally alter
the manner in which information is considered for public disclosure
under the Freedom of Information Act (FOIA) even though FOIA
presently protects proprietary interests. Indeed, the Department has
withheld under FOIA automated federal caselaw obtained from West
Publishing Co. because the case law is not an agency record under the
terms of the licensing agreement and, even if it were, it is exempt
under the FOIA based upon its proprietary value. The proposed
language, however, could radically change longstanding FOIA law in
ways unnecessary to protect West's interests. Under existing law,
information in which an outside party claims a proprietary interest
can be withheld based upon a demonstration of its market value. The
proposed language could be read to create a categorical FOIA
exemption for all such information without any demonstration of
adverse market effect in a particular case. The result would be a
new limitation on the ability of federal agencies to disseminate
useful information to the public, well beyond the adequate
proprietary-interest protections of existing law.
We appreciate this opportunity to provide our views to the
Committee.
The Office of Management and Budget has advised that there is no
objection to the submission of this report from the standpoint of the
Administration's program.
Sincerely,
[signature]
Sheila F. Anthony
Assistant Attorney General
/1/ For example, assume a private author of a U.S. almanac gathers a
series of studies from various government agencies and organizes them
in a new and useful way. Under existing copyright law, the
government would be free to copy and make use of the raw data -- the
original studies it had produced -- but it could not make substantial
use of value-added components of the almanac (such as the original
selection and arrangement of the materials). Under the new language,
however, it appears that the government would not be able to "use" or
"disseminate" even its own data contained in the almanac to the
extent it physically obtained that data from the almanac, without the
author's "express agreement" -- even if by some accident or
misfortune the government had lost the original studies made
available to the almanac's author and the almanac were now the only
source of this valuable information prepared in the first instance by
the government at taxpayer expense.
/2/ Under the proposed amendment, a Federal government employee
could not use a book -- a U.S. almanac, for example -- purchased for
his or her office and containing government information "except under
terms that are expressly agreed to by" the publisher. The government
employee would have to seek out the publisher for permission to use
the book he just purchased. Conceivably the publisher could demand
that only the original purchaser of the almanac could use it, and it
could not be placed in a government library for general use by
government employees. None of this would be true if the almanac
contained no government-originated information, but rather were an
original work fully protected under the Copyright
Act. :
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