The U.S. judiciary is considering breaking one publisher's grip on 75 years of federal court opinions. If approved, the action could make current and past court opinions instantly available on the Internet for free.
West Publishing currently enjoys a de facto monopoly on print and electronic databases of most U.S. court opinions through its control over the citation system used to refer to those documents. Although public documents like court opinions can't be copyrighted, the company has copyrighted the page numbering system that makes these opinions useful to lawyers and judges. Most U.S. courts require that all legal references be made through WestLaw's copyrighted citation system.
The United States Judicial Conference last week announced it is exploring the possibility of replacing West Publishing's system with a new public domain citation system proposed by the American Bar Association in August of last year.
The review comes after the company has been under close scrutiny from competitors and consumer groups for the past few years, particularly Ralph Nader's Consumer Project on Technology's Access Project. CPT asserts the company uses its copyright to prevent court opinions from being freely disseminated. West is currently defending its copyright in two separate suits.
The press hasn't been far behind. In a March 5, 1995 special report the Minneapolis Star Tribune reported that many top judges, including seven Supreme Court justices, had accepted trips to exotic locales plus cash prizes from West executives. Five court cases appealed to the Supreme Court in previous years had been denied review, the paper reported. Also, judges who had jurisdiction over West copyright cases accepted freebies from the company, with one taking a $15,000 prize while sitting on an a panel preparing an opinion in a West copyright challenge, according to the Star Tribune.
In its defense, a West spokeswoman told the newspaper the company has done nothing illegal or improper and that its competitors offer similar perks to judges, although the newspaper wrote it could find no other company that sponsored cash awards.
West isn't relying just on the courts to keep its status, however. It is also pursuing legislative protection. West is a major proponent of creating new laws that would make it possible to copyright facts stored in a database, the so-called sui generis right. The U.S. Constitution and current copyright law don't allow facts to be copyrighted unless the author shows sufficient art in the arrangement or presentation that would merit copyright protection. So, while an the Encyclopedia Brittanica may be copyrighted, the facts it contains may not.
One consumer group says judges are much to blame for West's continuing hold on court records. "It's predictable that monopolists are going to try to protect their monopoly," said James Love, director of the Consumer Project on Technology, in Nader's Center for Responsive Law.
"Judges are really the problem in a lot of ways. Some of these old farts don't care if anybody else has access to the law," he added. The government pays for their Lexis-Nexis searches, they're not even aware of the fact that people are paying $4 per minute [to search court documents.] If they hear from people that it's important, maybe they'll start caring."
Love said that under the new public domain citation system, court opinions could be released free on the Internet the day they were made. "West has a lot of judges on it side. They've convinced them that numbering their own court opinions will create too much work for them," said Love. "The Congress numbers its own records, as do many other agencies. Why can't the courts? They're public documents."
West officials didn't return a phone call requesting comments.
The public is invited to comment via email on whether West's system should be replaced with a free public domain system. Comments should be sent to firstname.lastname@example.org and are due by March 14. A hearing on the matter will be held in Washington, D.C., on April 3. The Judicial Conference is making copies of comments available in a Washington, D.C. viewing room, but has no plans to post them online, an official said today.