Time: Sat Mar 15 15:29:28 1997
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	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
>
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========================================================================
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
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