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 to 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):

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