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Publisher Must Lay Down the Law
by Oscar S. Cisneros
While the press and the tech world concentrated on the Microsoft antitrust trial, a
quieter legal battle was being waged for access to society's source code: the full
text of the law.
The case involved West Publishing, a tremendously powerful legal-information vendor
that claimed a copyright on law's written word as printed in its publications. For
generations, the Minnesota-based company jealously guarded its role as the almost
exclusive publisher of federal court opinions.
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On 1 June, West lost its claims when the US Supreme Court declined to hear its
arguments that it owns the text of the law as compiled in its books. The development
effectively put the law back in the public domain.
Armed with the latest technology, companies can now bring court opinions to the Web
without fear of copyright-infringement suits from West. The upshot: easier and cheaper
access to the law.
"Within five years, all this information will be available for free," said Carl
Hartmann, an attorney who argued and won the case against West.
West, for its part, disagrees with the ruling.
"Nobody should be able to rip off our products," said West spokesman Patrick Sexton.
"We took what's absolutely public and made it so that lawyers can find the information
quickly."
If the courts won't allow West de facto ownership of American case law, the company
may seek the succor of database legislation to achieve its ends.
For all practical purposes, West and its cozy competitor Lawyers preparing for trial
must turn to the companies to cite previous court rulings to bolster their cases. Why?
Because the page numbers of West's books have become the standard for legal citation
and are required by almost all courts.
West didn't always have a reputation as a bully. In fact, at the turn of the century,
many courts made the company their official court reporter based on its sterling
reputation. The courts needed someone to take care of their paperwork headaches. As
more courts turned to West, the page numbers in its publications became signposts to
specific cases.
It proved a lucrative situation for West, whose court-sanctioned monopoly put the bulk
of the printed law exclusively in its hands, Hartmann said. Its books even became a
symbol of prestige at law firms: attorneys paneled their walls with the latest and
most complete West collections.
By the mid-1980s, technological advances made it possible for online databases to
search the law. What's more, West's huge revenue chummed the waters for would-be
competitors.
One such competitor was Lexis-Nexis, a giant online publisher of academic and
professional documents that tried to muscle into West's business.
West sued, but the companies settled out of court and, according to critics,
practically split the market between them. The pair came to be known as "the Wexis
Cartel" by frustrated lawyers.
With Lexis in the picture, Hartmann said legal researchers had two options: pay West a
lot of money, or pay Lexis a lot of money.
"Every man, woman, and child basically pays a database tax to West or Lexis," said
Hartmann.
Other companies tried to bring competition and lower prices to the legal-data market.
But West threatened lawsuits, asserting it owned the copyright to the text of court
opinions printed in its books, Hartmann said.
West also claimed a copyright on its page-numbering system, the standard way to index
the law. Without access to its page-numbering system, rivals couldn't compete, he
added.
Undeterred, HyperLaw, a publisher of inexpensive legal CD-ROMs, fought West for almost
10 years, eventually winning a judgment in 1998 that declared West's copyright claims
invalid.
West tried to appeal the ruling before the Supreme Court, but the court refused to
hear the case.
In light of that development, nimble competitors, such as HyperLaw, VersusLaw, won the
right to add West's page-numbering system to their databases.
"Overall, this will make access to legal information easier and cheaper for the
average person," said Alan Sugarman, president and founder of HyperLaw. "If the lawyer
has to pay for access to legal information, he's going to pass it on to his client."
West doesn't simply republish rulings and opinions, said Sexton, the company's
spokesman. It employs dozens of expert legal editors who add enhancements, such as
case summaries and cross-references to other cases. The editors also research specific
points of law -- insurance fraud, for example -- and collate sometimes hundreds of
relevant decisions to help lawyers build their cases.
These products can't be replicated with software or search engines, so "the financial
impact of the ruling is insignificant" to West Publishing, Sexton said.
"We obviously don't have a copyright over the words that are in the original opinions,
but we do have a copyright on the improvements we make," he said, adding that the
opinions are available to the public outside of West's books.
Sexton also derided claims that West and Lexis split the market, which he said were
akin to Trilateral Commission conspiracy theories.
"I simply can't buy the argument, on its face, that this is not an open market,"
Sexton said and pointed to West's recent battle with Lexis over competing online
legal-citation search engines.
Asked how West could assert a copyright over the text of public opinions reprinted in
the company's books, Sexton said improvements such as cross-indexing added to the text
of the opinions. The fact that all the opinions were gathered in one place by West
made the end product, including page numbers, its property.
Hartmann said the company asserted its copyright claims for so many years that
Internet-based law databases and other data vendors were reluctant to take on West,
which had US$1.3 billion in revenue last year.
"Nobody else could really produce these products while West is making these threats,"
Hartmann said.
Stung by West's suit in the 1980s, Lexis also felt vindicated by the Supreme Court's
action in early June.
"Lexis-Nexis believes that the decision from the Supreme Court validates the position
that we've long held, which is that there is no copyright in page numbers," said Lexis
spokesman Mark Fieghery.
Whether the string of court decisions will encourage a major player to enter the
legal-information market remains to be seen. But for the first time, small competitors
have the opportunity to compete with West and Lexis.
"I think it'll certainly impact the way online publishers present their cases," said
FindLaw CEO Tim Stanley. "They'll probably start inserting the West page numbers."
Even though West lost in the courts, the company won't go down quietly. West is using
its political connections to lobby Congress to pass a database protection law that
would give database vendors absolute ownership of their compilations.
There are two bills before Congress, both offering some form of protection for
database vendors. But critics say they're concerned that if West and Lexis get their
way, basic functions of the Internet, such as linking and hosting, could be disrupted.
Meanwhile, upstarts are considering ways to charge more deeply into the legal market.
HyperLaw will update its CD-ROM library to include West's page numbers. And FindLaw
plans to expand free services on the Web.
"Whatever case law we put online is going to be free, and that's just the way the
company feels about it," FindLaw's Stanley said. "It's public information.
"If the government is not going to do it, we'll do whatever we can with scripting and
technology to get it up on the Web for free."
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