CAROL RUTH SHEPHERD Business, Technology, Entertainment and New Media Law 320 South Main Street PO Box 8403 Ann Arbor, MI 48107-8403 arborlaw@aol.com Subject: ABA citation proposal Date: Fri, 14 Mar 1997 17:40:30 -0500 (EST) From: ArborLaw@aol.com To: citation@teo.uscourts.gov, BruceGoldm@aol.com, internet- council@umich.edu, nahhat@ix.netcom.com, sheltond@co.washtenaw.mi.us, tw@fastl.cae.com March 14, 1997 ABA Citation Resolution Suite 4-512 Administrative Office of the U.S. Courts, Washington, DC 20544 via Internet: citation@ao.uscourts.gov Dear members of the U.S. Judicial Conference: I am writing because I think that a public domain citation system for judicial opinions is necessary to keep federal case law accessible and available to the widest number of citizens. Page and volume cites used to make more sense prior to the advent of electronic publishing. Now, requiring a page and volume cite clearly gives a monopoly preference to one provider of information: West Publishing, since they are by and large the only official reporter in many jurisdictions, and control the print production of all federal case law. I am an attorney in private practice without an online subscription to Westlaw or Lexis, which are proprietary subscriber systems only available through a high monthly fee. Since I practice in the new media and Internet area, the decisions I most frequently need to access are brand-new decisions which I download directly for free from court bulletin board systems. To require me to officially cite to these decisions by waiting for the reporter volume to be printed or by citing to the Westlaw or Lexis online access number, rather than by a public domain citation, unduly forces a high transaction cost on my legal writing and scholarship and client work. The ownership claims West is making in this citation system are far more troubling to me. As an intellectual property lawyer with 12 years' experience in copyright, trademark, unfair competition, trade secret, and other proprietary claims, I have never felt that the decision in West v Mead Data, requiring Lexis to license the right to embed pagination cites from West, was properly founded in copyright or any other federal or state intellectual property law. Now West is actively claiming that it owns the citations to federal court opinions and is currently pursuing these claims against electronic publishers in New York and Minnesota lawsuits. I am extremely troubled by the idea that West might be able to control other publishers of public-domain materials through its ability to grant or deny a license for use of the citation system to identify controlling legal principles and precedents. For the ABA to continue to honor and endorse a system subject to this far-reaching proprietary claim, amounts to the ABA endorsing the proposition that West be entitled to collect a "user fee" or "transaction fee" on every: o CD ROM which reproduces or cites cases o web page on the Internet which reproduces or cites cases o lawyer's brief which reproduces or cites cases o state court opinion which reproduces or cites cases o etc The economic impact of this on the current legal system are obvious. Under the compulsory license for these citations which was proposed by DOJ in the West/Thomson merger, all "publishers" will have to pay fees up to 9 cents per 1000 characters, per "product" per year, to use the West citation. "Products" will include web sites provided by non-profit organizations for free. Under this system, "publishers" can be required to pay $1.00-3.00 per federal court opinion in usable form, merely because West has added a citation to public-domain material, which was created and paid for entirely at taxpayer expense, and which is not otherwise subject to copyright. These fees will have to be paid every year to West Publishing. With the advent of digital media and the Internet, there is increasingly less and less difference between "authors" and "publishers". If West refuses to provide licenses to case citations for free publication on the Internet, West has in my opinion effectively been given an access restriction right *equivalent to copyright*, in public domain materials authored by the US Government. If we really want to do this, we should do it via representative government, by introducing a bill to Congress to amend the Copyright Act to give West a monopoly by statute. My understanding of the technical complexities involved in switching to and using a paragraph-based numbering system is that the burden on the court system will be minimal. Public domain (shareware) software is currently available for all popular word processors, which will go through a document and number the paragraphs automatically. In the alternate, it is a trivial process to write a computer program in any computer language, to take huge numbers of existing opinions in computer file format ("legacy data") and process them to automatically number the paragraphs. This will be a one-time operation which will require no additional human resources. In the course of informing my client base and business community about this issue, I have personally had a number of individuals volunteer to write such a tool for free. More and more citizens are enjoying greater and greater access to legal materials than they have ever had before, through the Internet and through CD-ROM library materials. Encouraging this proliferation by adopting a public-domain citation system will create an efficient and competitive market in low-cost legal materials. Very truly yours, Carol Shepherd Attorney cc: Internet Council of Michigan New Media Group of Southeast Michigan Great Lakes Interactive Marketing Association