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Title: Issues/Intellectual Property/Organizations - Union for the Public Domain Non-profit citizens group, seeking to protect and enhance the public domain in matters concerning intellectual property.
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Union for the Public Domain P.O. Box 19405 Washington, D.C. 20036 http://www.public-domain.orgABA Citation ResolutionSuite 4-512Administrative Office of the U.S.Courts, Washington, DC 20544via Internet: citation@ao.uscourts.govDear members of the U.S. Judicial Conference:We write to urge the United States Judicial Conference to adopt a publicdomain citation for judicial opinions. The Union for the Public Domain (UPD) was created in 1996. The UPD is anindependent membership organization. Our goal is to protect and enhancethe public domain in matters concerning intellectual property. Our membership is a diverse mixture of persons with eclectic backgrounds,including many computer and software experts, small businesses, students,professors, lawyers, librarians, concerned citizens, and others who areseeking common ground in order to provide a stronger voice for thepublic's rights in matters concerning intellectual property. The UPD strongly urges the court to adopt a system of public domaincitations. As the court is aware, at present only the United StatesSupreme Court publishes its own official reporter of court decisions. Thisreporter is published years after the opinion is issued by the court. Asa consequence, the citation for most federal case law is based upon thepage and volume numbers of books sold by West Publishing, a firm owned byThomson, the Canadian publishing giant.This may have been reasonable when West was the only publisher of lowercourt federal opinions. Hiowever, today electronic publishing has allowedmultiple sources of case law. The exclusive use of West's citation systemtoday impedes the use of these alternative sources. A system of citation which is based upon the private publishing ofopinions in books also has obvious technical limitations in today's worldof computers and the Internet. Why wait for a citation until a book ispublished? How should page numbers be represented on Internet Web pagesor on a CD ROM? Why should lawyers and the public have to go back andchange their citations when West delivers its printed volumes? Clearly itis time to embrace a more modern citation system that is appropriate forthe wide range on technologies used to disseminate legal information. But an even more compelling reason is that West Publishing claims that itactually owns the citations to federal court opinions. West Publishing iscurrently pursuing these claims in copyright suits in New York andMinnesota. In the recent merger between West Publishing and Thomson, theDepartment of Justice has obtained a compulsory license for the citations.This license spells out the cost of the West monopoly. Rival publishersand non-profit publishers must pay fees which escalate to about 9 centsper 1,000 characters, per "product" per year, to use the West citation.In practical terms, this means a publisher has to pay from $1 to $3 oreven more for to publish a single federal court opinion in usable form.This fees must be paid every year to West Publishing. If a publisher hasboth a CD-ROM product and an online product, it has to pay twice -- oncefor each product. Moreover, under the terms of the antitrust settlement agreement, West canrefuse to provide this license to persons who wish to publish the casesfor free on the Internet. Indeed, one college was reportedly asked byWest to pay $8 per "hit," to use the West citation on a single courtdecision it wanted to put on a free Internet site. The West copyright claims on citations, and the courts' de factorequirement that West citations be used has caused a troubling situation. Law schools and others provide some federal case law on the Internet tothe public without charge, but its use is significantly impaired becauseit cannot be cited. Moreover, the lack of a public means of citationretards more widespread internet availability of the case law. The West claim that it "owns" the citations under copyright law is beingtested in federal court. We are among those who believe the court shouldand will reject the West assertion that it can copyright judicialcitations. However, the Judicial Conference should be aware that West is seekingother legal mechanisms to buttress its ownership claims to citations. Westis the single most important proponent of a new sui generis law foratabases, that would define its paper bound court reports as a "database,"and prevent unauthorized "extraction" of its citations. This proposal wasconsidered by a December 1997 diplomatic conference in Geneva, hosted bythe World Intellectual Property Organization (WIPO). Congress has alreadyindicated that it is planning hearings on this proposal. Moreover, Westpublishing has sought other legislative vehicles to strengthen itsmonopoly on judicial citations, such as an amendment to the federalPaperwork Reduction Act. Thus, regardless of the outcome of the copyright suits, the Court mustrecognize that its continued reliance on a private company to providecitations for its opinions may block others from providing usable caselaw.The idea that any private company could "own" something as basic as thecitations to court opinions is repugnant. Respect for the law is basedupon the notion that the law is essentially democratic and civic, not thedomain of private interests. We believe that the courts should provide apublic means of citation. Absent doing so the courts effectively mandateuse of a private company's product to access and use public documents.There is now broad public support for the notion that government bodiesshould use the Internet to enhance the public's access to publicdocuments. This is important for everyone, not only for practicinglawyers or legal scholars. Yet the courts continued reliance on a privatecomapany to provide the citations to make case law usable blocks full useof the case law currently available to the public for free. We recognize that judges and court employees will have to expend someeffort to number court opinions, and to number the paragraphs of opinions. This cannot be a significant burden for the court. The benefits to thepublic clearly warrant such effort. Indeed, in evaluating this proposalthe court should also consider the beneficial impact greater competitionwould have on the courts own costs in obtaining citable case law. For these reasons, we urge the Judicial Conference to adopt a system ofpublic domain citations to court opinions. We respectfully request that the Court grant us an opportunity to addressthe court at its public hearing on April 3rd. Sincerely,John LedererChairUnion for the Public Domainhttp://www.public-domain.org
 

Non-profit

citizens

group,

seeking

to

protect

and

enhance

the

public

domain

in

matters

concerning

intellectual

property.

http://www.cptech.org/legalinfo/updlttr.html

Union for the Public Domain 2008 July

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Non-profit citizens group, seeking to protect and enhance the public domain in matters concerning intellectual property.

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