Time: Sat Mar 15 15:29:28 1997 by primenet.com (8.8.5/8.8.5) with SMTP id MAA01191; Sat, 15 Mar 1997 12:36:05 -0700 (MST) Date: Sat, 15 Mar 1997 15:22:06 -0800 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: Cost of the West Monopoly for Citing Federal Courts (fwd) <snip> >----------------------------------------------------------------- >Info-Policy-Notes - A newsletter available from listproc@tap.org >----------------------------------------------------------------- >INFORMATION POLICY NOTES >March 14, 1997 > > Here are the CPT Comments on the Public Domain Legal > Citation. We spell out in some detail the costs of > the West monopoly for citations to federal Circuit and > District Courts, based upon the fee schedule from the West > Complusory license. > > James Love (love@tap.org, 202.387.8030) > > -------------------------------------------------------------- > > Consumer Project on Technology > P.O. Box 19367, Washington, DC 20036 > http://www.cptech.org > 202.387.8030 > >March 14, 1997 > >ABA Citation Resolution >Suite 4-512 >Administrative Office of the U.S. Courts >Washington, DC 20544 > >via fax, 202/273-1555 >via Internet: citation@ao.uscourts.gov > >Dear members of the U.S. Judicial Conference: > >We are writing to express our support for a public domain >citation for court opinions. We are also requesting an >opportunity to testify at the public hearing on April 3, >1997. > >We work for the Center for Study of Responsive Law (CSRL), >an organization which was created by Ralph Nader in 1968. >By training, one of us is an economist, another is a lawyer, >and a third is a researcher who will later enter graduate >school. Each of us hope to benefit from the adoption of a >public domain citation. At CSRL, we work with the Consumer >Project on Technology (CPT) and the Taxpayer Assets Project. >We have been involved in disputes over the public's access >to court information since 1991. We have been engaged in >countless controversies over citations to judicial opinions, >public access to government databases of court decisions, >assertions of intellectual property in court opinions and >citations, and other related issues. > >It was at our urging that a number of legal publishers, >librarians, lawyers, and consumer groups met in Washington, >DC on October 19, 1994, to determine if a consensus could be >reached regarding a vendor neutral public domain citation >for court opinions. The groups that met were seeking to >liberate the law from a private monopoly, and to adopt a >citation that would accommodate a revolution in information >systems > >On that day agreement was reached that a new citation should >be based upon paragraph numbering, and court assigned >sequential numbers to opinions. Subsequently, the American >Association of Legal Publishers (AALP), the American >Association of Law Libraries (AALL), the Department of >Justice (DOJ), several state bar associations and recently >the American Bar Association (ABA) have all endorsed >virtually the same public domain citation. There is a >strong consensus that the ABA recommendation should be >adopted by the Court. > >In the Notice in the Federal Register, the Judicial >Conference asks: > >1. Whether the federal courts should adopt the form of >official citation for court decisions recommended by >the ABA resolution; and, > >2. The costs and benefits such a decision would have on >the courts, the bar, and the public. > >Question number 1 is easy. Yes, the federal courts should >adopt the form of citation recommended by the ABA. Everyone >who believes it is time to adopt a public domain citation >has endorsed the ABA approach. > >Question number 2 asks for cost benefit information. The >benefits for the public are better and cheaper access to >legal information. The federal judiciary and indeed all >branches of government are large consumers of legal >information. The prices for these services would be much >less if the courts did a better job of disseminating court >opinions. This would save the public money as taxpayers. >The public too would benefit from less costly access to >legal information. It is very expensive to buy high priced >services like Westlaw and Lexis, and a public domain >citation would promote competition. It is also costly to >travel to law libraries, particularly if you don't have a >law library close by, and if you place a premium on your >time. Plus many Americans don't live close to a law >library, or the law libraries have restricted access. A >public domain citation is one step toward a more complete >and modern approach to the dissemination of federal court >opinions. In our view, all federal court opinions should be >freely available on the Internet, at no charge, with a >vendor and technology neutral public domain citation. This >is the direction that the courts should move toward. > >In these comments, we will focus on the current monopoly on >legal citations. As you know, West Publishing is the >courts' de facto reporter for federal circuit and district >court opinions. Over the past twelve years, West has >engaged in endless litigation to support its contention that >it "owns" the citations to the past 75 years of federal case >law. We believe the West copyright claim will ultimately be >rejected by the Courts, but we are years from a final >resolution of this issue. Meanwhile, West Publishing is >seeking sui generis database protection laws in the United >States and before International bodies. West hopes these >efforts will overcome any setbacks in its copyright >litigation. Thus, the Court must recognize the continued >risk to the public of a system that permits a private >commercial entity to "own" something as fundamental as the >citations used for federal court opinions. > >The United States Department of Justice DOJ recently >negotiated a compulsory license for the West legal >citations. These licenses provide an insight into the cost >of the citation monopoly. Under the proposed consent >degree, West will be permitted to charge 4 to 9 cents per >1,000 characters, per year per published product, for the >use of its page numbers. New publishers will begin paying 4 >cents, but the rates soon escalate to 9 cents, plus >inflation. > >CPT has made some rough estimates of the cost of the >license. We examined one case each from 1935, 1955, 1975, >1985 and 1995, to determine the number of characters per >page in various West reporters, which featured changes in >fonts and paper size. The opinions in this small sample >have 2,491 to 3,802 characters per page, and an average of >5.0 to 5.3 characters per word. At 9 cents per 1,000 >characters, this works out to $.22 to $.34 per page for each >opinion. This understates costs, because the West license >requires payment for special WESTLAW non-printing computer >control codes, and we do not know how much this increases >the effective character count. > >Next, we looked at every 100th F.2d and F. Supp. from Vol. 1 >to the present, and counted the number of pages and cases >per volume. For F.2d, the average page length was 3.8 for >opinions before 1969, 4.0 for opinions between 1969 and >1983, and 5.6 for opinions after 1969. For F. Supp., the >average page length was 4.3 for opinions before 1969, 6.0 >for opinions from 1969 to 1983, and 9.3 for opinions from >1983 to 1996. Using these estimates for the length of >published court opinions, we reckon the average cost of a >West cite per opinion to be (using our $.22 to $34 per page >range): > > > Table 1 > Annual Cost to "Rent" West Cites > for Average Size Opinion > > F.2d F. Supp. > > $.22 $.33 $.22 $.33 > >Before 1969 $ .84 $1.23 $.94 $1.41 >Between 1969 and 1983 $ .88 $1.32 $1.31 $1.97 >After 1983 $1.23 $1.84 $2.05 $3.07 > >As one might expect, there is considerable variation around >the mean. For example, an opinion like 700 F.2d 1 is 32 >pages, with 95,048 characters, or 2,970 characters per page. >The cost of the West cite, without accounting for West >control characters, is $.27 per page, or $8.55 for the >opinion. Of course, as indicated, this is only the cost to >"rent" the cite. For CD-ROM or online "products," the rent >must be paid every year. > >Let us look at the cost of the West monopoly over time. In >recent years, the average length of a published opinion has >increased. In 1000 F.2d, the average opinion length was 8.8 >pages. For 900 F. Supp. (the last year we examined) the >average opinion length was 11.2 pages. The cost of a West >cite for these opinions, using the $.27 per page mid-point >figure, would be $2.38 for the circuit court and $3.02 for >the district court. This fee would be paid every year, for >every West published product. What is the present value of >the stream of rental payments for the average citation? If >one assumes a discount rate of 10 percent, and an inflation >rate of just 2 percent, the present value of the future >stream of income from the citation would $29.75 for the >Circuit Court opinions and $37.75 for the District Court >Opinions. If West issued just ten licenses for the opinions >(a firm that publishes both CD-ROM and online opinions needs >two licenses), the present value of the citation rentals >would be $297.50 for the Circuit Court and $377.50 for the >District Court. > >At present the federal circuit courts issue more than 7,500 >published opinions per year, and the federal district courts >issues at least another 7,500 published opinions per year. >The cost of one annual rental payment for these published >opinions would be $17,850 for the Circuit Court, $22,650 for >the District Court opinions, or $ 40,500 for both courts. >Of course, this is just for a single user. If we have just >10 license holders, the cost of the licenses to rent these >citations will be $405,000 per year. The present value of >10 licenses to cite a single year of federal opinions is >then $5,062,500. The $5 million represents the present >value of rental costs that the public will have to pay to >West Publishing for the privilege of citing one year of >federal law. For one decade of case law, this adds up to >$50 million. This is a high price to pay to simply avoid >numbering opinions and paragraphs. > >There are other problems with the current monopoly. Under >the West compulsory license, West Publishing does not have >to issue licenses to persons who would just put opinions on >the Internet for free. Indeed, West has been very >aggressive about the use of its citations on the Internet. >A student from Buffalo SUNY recently reported that West >Publishing had asked for $8 per "hit" to use a West cite on >a single opinion put on a Web site. If true, this is >absurd. But why should we give West Publishing the power to >tell a college student that they cannot publish a court >opinion on the Internet for the benefit of everyone who >finds it interesting? The courts need to do something to >fix this obvious problem. > >Of course the more basic issue concerns the Court's >responsibilities toward the public. Is not the law the most >public of all public documents? Isn't it unseemly for the >court to operate as a profit center for a commercial entity? >How do we explain this system to high school students who >are trying to learn legal research on the Internet? Why is >this taking so many years to resolve? Why has the judiciary >been so reluctant to protect the public in these matters? > >For all of the above reasons, we urge the U.S. Judicial >Conference to approve the public domain citation proposed by >the ABA. > > >Sincerely, > > >James Love >Director > >Todd Paglia >Staff Attorney > >Alex Roth >Research Assistant > >++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ >INFORMATION POLICY NOTES is a newsletter sponsored by the Consumer Project >on Technology (CPT), a project of Ralph Nader's Center for Study of >Responsive Law. The LISTPROC services are provide by Essential >Information. Archives of Info-Policy-Notes are available from >http://www.essential.org/listproc/info-policy-notes/ > >CPT's Web page is http://www.cptech.org > >Send subscription requests to listproc@tap.org with the message: >subscribe info-policy-notes Jane Doe > >CPT can both be reached off the net at P.O. Box 19367, Washington, DC >20036, Voice: 202/387-8030; Fax: 202/234-5176 >++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ > > > > > > > > > > > ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ > Liberty's Educational Advocacy Forum, Indiana-FIJA, Inc. > Url: http://www.iquest.net/~rjtavel/ > ************************* > Not a high-tech law firm brochure. > Dr. Tavel's Self Help Clinic and Sovereign Law Library > promotes "action that raises the cost of state violence > for its perpetrators (and) that lays the basis for > institutional change " -- Noam Chomsky > For Liberty in Our Lifetime, R.J. Tavel, J.D. > ************************* > Updated Daily by > The Other One Computer Consulting International, Ltd. > mailto:rjtavel@iquest.net > ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ > > > ======================================================================== Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness email: [address in tool bar] : Eudora Pro 3.0.1 on Intel 586 CPU web site: http://www.supremelaw.com : library & law school registration ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this ========================================================================
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