PURELY BIBLIOGRAPHIC ISSUES: THE IMPACT OF THE INTERNET ON ACCESS TO LEGAL DOCUMENTARY MATERIAL⁽²⁾

Standardization of Modes of Citation to Documents on the Internet (Including Problems of Lack of Pagination)

A great change is underway in modes of citation in the United States.⁽³⁾ The change is designed to make citations what I will define as "medium neutral" and "public domain."⁽⁴⁾ A "medium neutral" system of citations is one that works as well on the Internet or CD-ROM as it does in printed form. An example is the citation, "37 U.S.Code § 106 (as amended through May 5, 1996)." This citation refers to a particular section of a particular "title" of the United States Code as amended through a particular date. Because this citation is unrelated to such physical characteristics as bound volumes and pages, it is equally well-suited for all media. It is also "public domain." In one sense all citation forms are "public domain". Because of the First Amendment and the "fair use" doctrine, I can publish an article with a citation to a particular page or paragraph of Professor Paul Goldstein's excellent treatise on copyright, without worrying about being sued by Professor Goldstein or his publisher. However, because of the copyright law I cannot legally publish his treatise on the Internet in a form that would allow users either: (1) to access particular parts of the treatise by typing in a citation or (2) to browse the treatise and derive the citation to a given passage. Thus I categorize the citation, "2 Paul Goldstein, Copyright § 7.2.2 (2d ed. 1996)" as non-public domain. In contrast, the text, title numbering, and section numbering of the United States Code are all the public domain. Therefore, anyone can publish the Code on the Internet in a form that can be accessed by standard citations and that can allow derivation of standard citations. In this paper, I use "public domain citation" only in this second sense, to refer to citations to texts and associated reference indications that freely can be published in a way that allows both citation and derivation of citation. The combination of medium neutral and public domain citation forms will be a powerful force in driving down the cost of maintaining access to legal information, because it will remove barriers to the use of new media and the entry of new competitors in the supply of legal information.

Most of the existing citation modes in the United States are not "medium neutral" or are not "public domain." Systems of citing to statutes in the United States generally are "medium neutral" in that they cite to chapters and sections of codes. A few are not "medium neutral" in that they cite to physical volumes. In a rapidly diminishing number of states, citations to statutes are not public domain, because of claims of proprietary rights by the private companies that produce the official compilations. For case law, the traditional system of citation has been neither medium neutral nor public domain. By rules of courts and law reviews, citation to volumes and pages of printed case reports published by West Publishing Company have been required. These are not medium neutral, because they refer to printed volumes and pages. However, they can be adapted with some expense to the Internet. The cost is that of creating and artificial volume and page breaks in the Internet version. This is called "star paging" from the practice of inserting an asterisk ("star") and page number at the point of the original page break. A more serious problem is that they may not be public domain, because West Publishing Company asserts a variety of proprietary rights which, if valid, would prevent any competing publisher from creating an Internet databank that could be accessed through the standard citations. (These assertions of proprietary rights will be discussed below.) Finally, traditional systems of citations to secondary sources, both book-length and article-length, are neither medium-neutral nor public domain since they refer to particular pages and to copyrighted text.

Most of the impetus toward the creation of a new system comes from the buyers of access to legal information, who expect that a public domain, medium neutral system would produce a variety of vendors in a variety of media, leading to sharply reduced costs of access to legal materials. The leading groups lobbying for a new system are: (1) the American Bar Association,⁽⁵⁾

(2) state bar associations, (3) the American Association of Law Libraries, and (4) the commercial legal publishers other than West. Not surprisingly, West Publishing Company and its purchaser, Thompson, would prefer to maintain the existing system.

In the United States of America, judges and student law review editors standardize the modes of legal citation. There is no "market" for competing citation systems.⁽⁶⁾ The judges of the state supreme courts and of the United States Supreme Court (typically acting on the advice of committees of lower court judges) promulgate rules fixing the modes of citation required in documents (such as briefs) submitted to the courts. Once rules are promulgated, the bar must obey them. The student editors of a small number of "leading" law reviews publish A Uniform System of Citation⁽⁷⁾ The vast majority of legal periodicals require that articles submitted conform to these rules. No other citation system has a chance to succeed, any more than a competing typewriter keyboard could displace the "QWERTY" keyboard in the United States.⁽⁸⁾ The only serious attempt to compete in law review citation prescription⁽⁹⁾ has not achieved a significant market share.

Both the judges and the student law review editors operate under perverse sets of incentives. Public choice theory suggests that normal market incentives do not operate for judges.⁽¹⁰⁾ Judges cannot maximize their salaries, which are fixed by law. They can maximize their leisure time, the free budgetary resources of judicial institutions, and public esteem. The students have an incentive to change the Bluebook too frequently, since each new edition of the Bluebook brings in substantial funds for such publishing essentials as beer and potato chips.⁽¹¹⁾ The judicial desire for esteem in the eyes of the bar and the student desire for drinks and snacks have combined to push forward the development of medium neutral and public domain forms of citation. Several states which previously lacked an official state reporter have moved to a system of giving official opinion and paragraph numbers to opinions issued by the state courts. The student law review editors have made enough changes in citation rules to justify forcing every law library and law student to buy a new, sixteenth edition of the Bluebook.⁽¹²⁾ These changes have assisted medium neutral citation by preferring it over medium specific citation. They have also preferred public domain citation, by removing the requirement for parallel citation to a proprietary source where public domain citation is available. Bluebook Rule 10.3.1 now provides:⁽¹³⁾

If the decision is available as an official public domain citation (also referred to as a medium neutral citation), that citation should be provided instead (of the regional reporter). A parallel citation to the regional reporter may be provided as well. When citing a decision available in public domain format, provide the case name, the year of decision, the name of the court issuing the decision, and the sequential number of the decision. When referencing specific material within the decision, a pinpoint citation should be made to the paragraph number at which the material appears in the public domain citation. The following fictitious examples are representative of the recommended public domain citation format:

Stevens v. State, 1996 S.D. 1, ¶ 217.

Jenkins v. Patterson, 1997 Wis. Ct. App. 45, ¶ 157, 600 N.W.2d 435.

The step of making the parallel citation to the West reporter optional is very important. It means that writers of articles (or of briefs in case of a court rule) do not need to include an expensive set of West reporters in their libraries.
 
 

Dealing With the Ephemeral Nature of Material on the Internet: Documents Can be Here Today and Gone or Altered Tomorrow

The radical solution to the ephemeral nature of the Internet is to make up a continuing, total, permanent backup of the Internet. Already a major experiment in this direction is under way.⁽¹⁴⁾ The rapid decrease in the costs of computer storage may make such a backup quite practical. However, copyright issues create a real problem. If use of the archive were limited to scholars conducting research on the history of the Internet, the fair use doctrine might protect against copyright claims. However, legal materials need to be accessible to a broad segment of the public. One possibility would be for Internet sites to display a special symbol to indicate that they contain only public domain material so that archive repositories would know that they could preserve these cites without fear of copyright violation. Many courts post only recent decisions on computer bulletin boards or the Internet and systematically remove them after a short period, e.g. 90 days. Luckily various law school libraries and entrepreneurs have been copying these decisions systematically to create permanent archival databanks.

Absent such technical solutions, the preferable approach, and that embodied in the newest citation rules in the United States is to use a medium independent citation, such as, "Stevens v. State, 1996 S.D. 1, P 217." One searching for legal information can then use a legal search engine, such as <http://www.lawcrawler.com> to find sites containing the Wisconsin Appellate decisions. Once the searcher has found such a site, it will be a simple matter to retrieve the case. This solution also solves problems connected with the fact that cases typically appear first in a "slip opinion," are then revised (usually for typographical errors, but occasionally substantively) for publication. The case would retain its case and paragraph numbers throughout the revision process. If a new paragraph were added, one suggested standard would give it a decimal notation, for instance, paragraph 15.1 could be added between paragraphs 15 and 16, and, at a still later date, paragraph 15.11 could be added between paragraphs 15.1 and 15.2.

If there is no medium-neutral citation, it will be necessary to access an Internet resource designated only by a Uniform Resource Locator (URL), such as <http://www.law.uiuc.edu>. The latest edition of the Bluebook states the following citation Rule 17.3.3:

Because of the transient nature of many Internet sources, citation to Internet sources is discouraged unless the materials are unavailable in printed form or are difficult to obtain in their original form. When citing to materials found on the Internet, provide the name of the author (if any), the title or top-level heading of the material being cited, and the Uniform Resource Locator (URL). The Uniform Resource Locator is the electronic address of the information and should be given in angled brackets. For electronic journals and publications, the actual date of publication should be given. Otherwise, provide the most recent modification date of the source preceded by the term "last modified" or the date of access preceded by the term "visited" if the modification date is unavailable:

Mark Israel, The alt.usage.english FAQ File (last modified Nov. 17, 1995) <ftp://rtfm.mit.edu/pub/usenet/alt.usage/

english/alt.usage.english_FAQ>. Scott Adams, The Dilbert Zone (visited Jan. 20, 1996) <http://www.unitedmedia.com/

comics/dilbert>.

Citations to journals that appear only on the Internet should include the volume number, the title of the journal, and the sequential article number. Pinpoint citations should refer to the paragraph number, if available:

Dan L. Burk, Trademarks Along the Infobahn: A First Look at the Emerging Law of Cybermarks, 1 Rich. J.L. & Tech. 1, ¶ 12 (Apr. 10, 1995) <http://www.urich.edu/~jolt/vlil/burk.html>.
 
 

Technical Issues of Dealing With the Fact That, While the Quantity of Legal Materials on the Internet is Growing Rapidly, Most of these Materials Are Being Posted Without Any Searching Capability

These problems are being solved in the United States by entrepreneurial organizations that are copying public domain materials posted without search capability to new sites with search capability. Many courts publish their opinions on computer bulletin boards or the Internet with no search capability. Law school libraries and commercial legal database companies copy these opinions and then create sites with search capability. It is now possible to search cases in every Federal judicial circuit, even though the courts themselves have posted their opinions without search capability.
 
 

Dealing With the Multiplicity of Search Systems Used At Those Internet Law Sites that Do Have Search Capability. How, For Instance, Do You Find All Cases Dealing With the Question of Product Liability for Defective Diving Boards?

The two largest commercial search systems on the Internet, LEXIS and WESTLAW make a nationwide search easy. They allow simultaneous access to a database of all state and Federal cases using a single search command. Starting about 20 years ago, law schools began requiring all students to learn how to search on LEXIS and WESTLAW. This means that almost every law office has lawyers who know how to use these systems. The only problem is paying the relatively high fees that LEXIS and WESTLAW charge for their superb service.

It is impossible to do an equally comprehensive search using Internet resources other than LEXIS and WESTLAW. (A current list of Internet legal research sites may be found under "law" at <http://www.yahoo.com>) There are a number of problems. Case reports for some jurisdictions are not available on the Internet. Even where case reports are available, they generally go back only a few years or a few decades, not for two centuries as is the case with LEXIS and WESTLAW. Doing a nationwide search could involve visiting a dozen different Internet sites for Federal cases and up to 50 more sites for state law. The sheer labor of visiting all these sites would prevent comprehensive searching. Even if one could visit this large number of sites, one would have the problem of a multiplicity of search systems. Some sites use generally available and well-known search systems, such as "Altavista Advanced Search." Others use bizarre, home-made search systems. However, sites for United States law on the Internet are developing very rapidly. Two developments are underway: (1) the development of sites supported by a combination of advertising and low user fees and (2) the creation of "meta-sites" that allow easy searching of multiple files. If the copyright problems discussed elsewhere in this article can be solved, it should become possible to do a cheap and comprehensive search of recent materials.

One might hope that one or more of the various generalized Web Search engines (e.g., Altavista, ExCite, Lycos) might have visited all the cases in all the court sites, so that one could use of these engines to do a general case search. But a little experimentation will show that this is not so. The search engines provide some useful background on diving board safety, but almost no cases. This is probably because the sites containing cases do not maintain them in hypertext links, which the search engines could access, but rather keep them in a searchable database, which is beyond the reach of the search engines.
 
 

Are Court Rules and Legal Periodical Rules on Citations Favorable to Citations to Internet Sources, or Do They Require Citations to Hard Copy Sources?

Traditional court and legal periodical rules have required citation to hard copy sources. Court and periodical rules have generally limited citation to Internet sources to parallel citations and to situations where hard copy sources were unavailable or difficult to obtain. However, the move toward the use of "medium-neutral" citations may render the whole issue moot. The new Bluebook citation form, "Stevens v. State, 1996 S.D. 1, ¶ 217" would mean Paragraph No. 217 of Case No. 1 of the Year 1997 in the South Dakota Supreme Court decisions. This is not a citation to hard copy nor to the Internet--it is a citation to the case itself. This citation would serve equally well for users of Internet, CD-ROM, and print sources. Internet and CD-ROM users would need merely to type in the citation to retrieve the text of the case. Market forces would lead publishers of printed materials to put years and case numbers on the spines of the volumes. Thus a print user would look for a volume that might have "1997 South Dakota Supreme Court Cases 1-87" on the spine.
 
 

Availability of Translations of Materials

No significant amount of translations of United States legal materials are available on the Internet.
 
 

Evolution of Publishing on the Internet, Including Possible or Likely Future Developments

It is, of course dangerous to try to predict the evolution of the Internet.⁽¹⁵⁾ Within a few years, almost all Federal and state statutes and regulations and almost all new Federal and state court decisions released for publication will appear on free Internet sites. Many legal periodicals will also put their new issues on free Internet sites. There will be some serious gaps in the free internet sites. Coverage of retrospective cases and law periodical articles will be limited, because of the high cost of putting these materials into digital form. Treatises will remain available only on the more expensive Internet sites, since authors' greed for royalties will exceed their lust for fame. Standards will move rapidly toward medium-neutral, public domain citations.

Entrepreneurs will gather public domain materials into large, comprehensive Internet sites, using a single search engines with commands similar or identical to the familiar LEXIS and WESTLAW systems.⁽¹⁶⁾

The better comprehensive sites will require paid subscriptions, but competition will drive prices down to very low levels. However, these sites will still be inferior to LEXIS and WESTLAW, because they will lack full coverage of retrospective case and law review materials. Retrospective materials will be added selectively to the comprehensive sites, with the most commonly cited materials added first.
 
 

MIXED BIBLIOGRAPHY AND INTELLECTUAL PROPERTY

Is There Copyright in Public Documents?

The United States Copyright Act provides that there is no copyright in "works of the United States government". Wheaton v. Peters, 33 U.S. 591, 661 (1834) is generally interpreted to mean that there is no copyright in federal or state statutes or judicial decisions. However, lower courts have made an exception for statutes that incorporate previously copyrighted material. Several cases suggest the owner of the pre-existing copyright has a cause of action against anyone who makes a copy of the statute.⁽¹⁷⁾ Copyrighted material appears rather often in state statutes, since the copyright in Uniform Laws belongs to the National Council of Commissioners on Uniform State Laws and the copyright in the Uniform Commercial Code belongs jointly to the Commissioners and the American Law Institute. The widely cited Restatements are also copyrighted by the American Law Institute. However, the Commissioners and the Institute have been very liberal in licensing their copyrights.
 
 

Is There Intellectual Property Protection for the Method Normally Used to Cite Cases or Other Materials, Such as Citations to Proprietary Sets of Law Reports

There has been considerable litigation over West Publishing Company's claim of copyright protection that would prevent others from publishing judicial opinions in a form that would allow either access to the opinions using West's internal page numbers or derivation of internal page number citations from the material. In West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219, 1227 (8th Cir.1986), cert. denied, 479 U.S. 1070 (1987), the Court of Appeals upheld a preliminary injunction against Mead, the owner of LEXIS. Mead had planned to add the in the internal page numbers of West court reports to Mead's LEXIS databases. Because custom and court rules required citing these internal page numbers, without them the LEXIS databases could not compete with West's print and electronic publications. The case was settled by Mead's agreement to pay an undisclosed licensing fee. However, a later United States Supreme Court decision, Feist Publications v. Rural Telephone Service Company, 499 U.S. 340 (1991) undermined the rationale of West v. Mead. This case held that the white pages of an ordinary telephone directory were a mere facts and that neither gathering the information nor putting it in alphabetical order met the minimum creativity requirement for copyright. Feist rejected the holdings of some lower courts that "sweat of the brow" could be a substitute for creativity. The decision in West v. Mead was based in part on the discredited "sweat of the brow" doctrine.

In 1996, a district court upheld very broad copyright claims by West, including claims to its internal page numbering, rejecting arguments based upon Feist.⁽¹⁸⁾ However the next year another district court rejected identical claims and held that a competitor could scan West publications into a computer and then publish them on CD-ROM using West's pagination.⁽¹⁹⁾ The issue of West's copyright claim to internal pagination also arose in an antitrust case brought by the government in connection with the purchase of West by Thompson. The court hearing the antitrust case characterized these claims as "weak."⁽²⁰⁾ It is quite possible that a West page-number copyright cases will work its way up to the United States Supreme Court.

The eventual outcome of this issue will affect the movement toward the replacement of the traditional standard mode of citation to West publications with the emerging method of citation to year, case number, and paragraph number. It seems almost certain, however, that publication of case reports in the United States will move from monopoly to competition during the next decade. If West wins its claim to the protection of internal pagination, powerful forces will push for the universal adoption of a year, case number, and paragraph number system of citation. If West loses much of the momentum behind the movement toward the new citation method will evaporate. This is because the a primary motive behind the push for a new citation method has been the desire of libraries and lawyers to have competitive sources of supply of case reports meeting court and law review citation requirements.
 
 

PURELY INTELLECTUAL PROPERTY ISSUES

Berne "Pluses" in the TRIPs Agreement and Their Impact on National Laws, In Particular the Specified Protection of Compilations (Article 10), the Right of Distribution (Article 6), and the Extension of the Right of Communication to the Public (Article 8)

The President recommended no amendments and Congress made no amendments to United States copyright legislation with respect to Articles 6, 8, and 10 of TRIPs.⁽²¹⁾ Since neither the TRIPs Agreement nor the Berne Convention are self-implementing in the United States, Articles 6, 8, and 10 have had no impact on United States law.
 
 

The Protection of Databases in the National Jurisdiction

As mentioned above, the protection of databases in United States law was severely limited by Feist Publications v. Rural Telephone Service Company, 499 U.S. 340 (1991), and in Matthew Bender & Co., Inc. v. West Publishing Co., Inc., 1997 WL 266972 (S.D.N.Y.), the court held that West's editorial efforts lacked creativity, and allowed a competitor to scan printed West case reports into the competitor's database.

It possible, of course, that there will be new legislation or a new international treaty protecting databases, so that West (or rather its successor Thompson) will gain by statute or treaty what it is likely to lose in litigation under the United States Copyright Act. However, even if such a law or treaty is adopted, competitors will be free to create databases to compete with West once the shift to public domain citation standards is completed.

1. Peter B. Maggs is William W. and Marie L. Corman Professor of Law, University of Illinois at Urbana-Champaign.

2. This paper follows exactly the outline suggested by the General Reporter, Professor John N. Adams of the University of Sheffield Faculty of Law.

3. Robert J. Ambrogi, "Internet Use Creates Call for New Citation System," 39 Res Gestae 35 (1996); Anne Wells Branscomb, "Lessons from the Past: Legal and Medical Databases," 35 Jurimetrics J. 417 (1995); Lynn Foster, "Medium-Neutral Citation Form: It's Here," 32 Ark. Law. 6 (1997); Marcia J. Koslov, "What is the Citation Proposal?," 68 Wis. Law. 10 (1995); Kathy Shimpock-Vieweg, "Citation Reform: the Time is Now," 33 Ariz. Att'y 10 (1996); James H. Wyman, "Comment, Freeing the Law: Case Reporter Copyright and the Universal Citation," 24 Fla. St. U. L. Rev. 217 (1996). But see Donna M. Bergsgaard and William H. Lindberg, "Case Citation Formats in the United States: Is a Radical New Approach Needed?," 23 Int'l J. Legal Info. 53 (1995); Robert Berring, "On Not Throwing Out the Baby: Planning the Future of Legal Information," 83 Calif. L. Rev. 615 (1995).

4. These terms are taken from the March 1, 1995 Report of the Association of American Law Libraries Task Force on Citation Formats <http://www.aalnet.org/task_force.html>. However, my definitions do not correspond exactly with those used by the Task Force. In particular I find the Task Force's definition of "public domain" to be unclear.

5. See http://www.abanet.org/pub/citation/report.txt

6. For this reason I strongly disagree with Professor Robert Berring's argument that the marketplace should determine which citation system is used. Berring, supra note 2.

7. A Uniform System of Citation (16th ed., 1996).

8. Peter Grindley, Standards Strategy and Policy: Cases and Stories (1995); Paul A. David, "CLIO and the Economics of QWERTY," 75 Am. Econ. Rev. 332 (1985).

9. See Book Note, "Manual Labor, Chicago Style 'The Maroon Book,' by Richard Posner, the University of Chicago Law Review, and the University of Chicago Legal Forum," 101 Harv. L. Rev. 1323.

10. Jonathan R. Macey, "Judicial Preferences, Public Choice, and the Rules of Procedure," 23 J. Legal Stud. 627 (1994); Richard A. Posner, "What do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 Sup. Ct. Econ. Rev. 1 (1993).

11. Ian Ayres, Supply-Side Inefficiencies in Corporate Charter Competition: Lessons from Patents, Yachting and Bluebooks, 43 U. Kan. L. Rev. 541 (1995)

12. A. Darby Dickerson, "An Un-Uniform System of Citation: Surviving with the New Bluebook (Including Compendia of State and Federal Court Rules Concerning Citation Form)," 26 Stetson L. Rev. 53 (1996).

13. The Bluebook confuses the meanings of "public domain" and "medium neutral." Perhaps the editors drank too much beer.

14. <http://www.archive.org>; Rajiv Chandrasekaran, "In California, Creating a Web of the Past; Scientist-Entrepreneur Is Trying to Record Internet's Evolution," Washington Post, Sept. 22, 1996, at H01.

15. If I really knew how to predict the future of computers, I would have bought Apple stock in the 1970s and traded it for Microsoft stock in the 1980s. I didn't.

16. Under the holdings in Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1995), aff'd by an equally divided court, 116 S.Ct. 804 (1996) and Harvey Hubbell, Inc. v. General Electric Co., 262 F. 155 (S.D.N.Y. 1919), competitors would be entitled to copy the WESTLAW and LEXIS search commands exactly.

17. Practice Management Information Corp. v. American Medical Association, 1997 WL 438518 (9th Cir. 1997); CCC Information services, Inc. v. MacLean Hunter Market Reports, Inc., 44 F.3d 61 (2nd Cir. 1994); Building Officials & Code Adm. v. Code Technology, Inc., 628 F.2d 730 (1st Cir. 1980).

18. Oasis Publishing Co., Inc. v. West Publishing Co., Inc. 924 F.Supp. 918 (D.Minn. 1996).

19. Matthew Bender & Co., Inc. v. West Publishing Co., Inc., 1997 WL 266972 (S.D.N.Y.).

20. United States v. The Thompson Corp. and West Publishing Co. 949 F.Supp. 907 (D. D.C., 1996).

21. Office of the United States Trade Representative, Executive Office of the President, "The Uruguay Round Agreements Act; Statement of Administrative Action: Agreement on Trade Related Aspects of Intellectual Property," Sept. 27, 1994, 1994 WL 761796. Uruguay Round Agreements Act, PL 103-465, December 8, 1994, 108 Stat. 4809.