Free People Need A Free Market In Legal Research
WHO owns the law? That's an easy one: nobody, or, more precisely, everybody. Law belongs to the public.
But lawyers and judges, let alone Cindy Citizen, don't carry the law around in their heads. They look it up.
So here's a harder question: Who owns access to the law? That is, who determines where you can look it up?
That's the fundamental issue in a hot dispute among legal publishers, law librarians, judges, consumer activists, the Department of Justice, and even members of Congress. The battle, which has been joined on numerous fronts, has been sparked in large part by the rapid growth of computerized legal research.
The 800-pound gorilla in the arena is West Publishing Company of Eagan, Minn. For more than a century, West has been the leading publisher of federal and state court decisions across the United States. (In the Anglo-American common-law tradition, judges' decisions in specific controversies - ``case law'' - are important precedents for later judicial rulings on similar issues.) West prints judicial opinions in various ``Reporters'' familiar to every lawyer in America. Legal writers almost always cite cases by the volume and page numbers in West Reporters.
West aggressively defends its profitable products against copyright infringement. West does not hold rights to the judicial opinions themselves, but it owns a proprietary interest in its unique system of compiling them.
West has long had to fight off competitors, but the competitive environment changed dramatically in recent years because of computers. In law, as in so many other areas, on-line data-bases and CD-ROM disks have opened up new possibilities for fast, cheap, pinpointed research. West and other legal publishers were quick to seize the possibilities, offering on-line services like WESTLAW and LEXIS. And a host of legal-research computer products also began to appear from small, often cut-rate providers.
But many of these providers complain that West has set up roadblocks across the information superhighway. The problem: West won't let competitors identify cases using its locator numbers. Without the citations enabling users to find cases in West Reporters, these providers say, their data bases are of limited usefulness. (West has licensed its citation system to LEXIS and a few other major data bases.)
Competitors and other critics say West's copyright has kept the cost of computerized legal research artificially high. In a letter last month to Attorney General Janet Reno, the American Association of Law Librarians (AALL) said that ``West [has] near monopoly-like power [that] severely limits the ability of others to enter the market and compete effectively.''
The AALL and other critics of West like the Taxpayer Assets Project (TAP) in Washington support efforts to create a nonproprietary method for citing cases that doesn't rely on West's volume and page numbers and is adapted to computer as well as printed formats. Courts in Louisiana and Wisconsin and in the federal Sixth Circuit are experimenting with such systems.
In a more controversial proposal, TAP wants the federal government to create its own case-law database that would be available to all researchers at nominal cost. West is not alone in arguing that such a step would be very costly and would unnecessarily duplicate information provided by the private sector.
In a Sept. 2 press release the Justice Department said it would explore both of these arguments.
West has mounted an intense lobbying and public-relations blitz in opposition to such proposals, especially the creation of a public-domain case-law database. Contradicting claims that it exercises monopoly power, the company asserts that ``there are at least 175 competing providers of case law....''
All the parties to the dispute agree that ready access to the people's law is a cornerstone of democracy. But they have different visions about how to achieve that access.