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February 26, 2005

Wexis Data, Anyone?

Since I know you're all full of knowledge on all kinds of crazy topics, I have another question for you: I'm writing a journal article (due very very soon) that basically argues that Westlaw/Lexis should be freely available to all, both as a matter of copyright law and public policy. (I recognize that this is quixotic, but I think it's worth making the argument, anyway.) Do you know of any anecdotal or statistical evidence that the cost of online legal research is a burden on solo practitioners, legal aid attorneys, or public defenders? I'm especially interested in any evidence that the cost of legal research can actually affect legal outcomes (e.g., cases where a solo or public defender lost a case b/c he/she was outgunned in the research dept.). If you have stories about this kind of thing yourself, or if you know where I could find this kind of information, please let me know. Um, ASAP. ;-) Thanks! p.s.: Also, if you have any thoughts on the topic generally, I'd certainly be interested in hearing those, as well. Do you see any legal or public policy arguments for/against the current scheme of for-profit legal research?

Posted February 26, 2005 02:44 PM | 2L law general

hmmm... I only have anecdotal evidence in the other direction. My dad just went solo after 20 years at medium-sized to large firms. He says that online access to information (both of the Wexis variety and the publicly-available variety) have made life a lot easier for a solo. You still have to pay for the databases, but you don't have to maintain a big legal library in your office (or have to keep running out to the bar association's library). In particular, he was talking about how much he liked the fact that with LexisOne he could buy access by the day or the week if that was all he needed.

He does mainly health care and education law, so this probably doesn't apply much beyond that.

Posted by: Jim at February 26, 2005 06:52 PM

On public availability of the law:

Banks v. Manchester, 128 US 244 (1888)
based on Wheaton v. Peters, 8 Pet. 591 (1834)
17 USC 8 (1909), repealed & replaced by 17 USC 105 (1976)
Patterson & Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L.Rev. 720 (year?)


West and Lexis go at it when Lexis uses "star pagination" to copy the "arrangement" of opinions in the Federal Reporter System:

West Pub. Co. v. Mead Data Center, Inc. 799 F.2d 1219 (8th Cir. 1986), cert. denied 479 U.S. 1070 (1987) (West wins); contra Matthew Bender & Co. v. West Pub. Co., 158 F.3d 693, 699-701 (2d Cir. 1998), cert. denied 526 U.S. 1154 (1999) (West loses).


On model codes and other documents rendered authoritative by government regulations or necessary to apply the regulations:

Look for the Veeck v. Southern Building Code Congress Int'l, Inc. line of cases in the Fifth Circuit.

Compare Practice Mgt. Info. Corp. v. American Med. Ass'n., 121 F.3d 516 (9th Cir. 1997), cert. denied 522 US 933 (1997), amended by 133 F.3d 1140 (9th Cir. 1998) and CCC Info. Servs. v. Maclean Hunter Mkt Reports, Inc., 44 F.3d 61 (2d Cir. 1994), cert. denied 516 US 817 (1995), with Building Officials and Code Adm. v. Code Tech, Inc., 628 F.2d 730 (1st Cir. 1980).

(General principles: if it's adopted as law, its copyright is more limited; but if you just need it to apply the law, you gotta go buy it.)


I might have more cites lying around here somewhere. I pulled those from an early 2002 independent study paper that covered some of those topics.

My practice experience is all in Colorado. Here's what I know about the picture out here.

In Colorado the statewide legal aid organization buys Lexis service as one organization and all of the legal aid attorneys -- the staff attorneys at least -- who work in the subsidiary offices can take advantage of it. I have no idea what it costs, but probably a lot less than if each office tried to go out and buy it separately. I don't know what happens to legal aid organizations that are smaller or less centralized.

The PDs, prosecutors, and courts here all have Lexis. I don't know if each buys it separately or if it's part of some massive deal the state makes with Lexis. (Lexis now publishes the Colorado Revised Statutes, too. It wouldn't surprise me if it's all one package deal with Lexis. That would be nice, at least.)

The Colorado Revised Statutes are available for free online, and one can perform simple searches. The Colorado Administrative Code can be found on the state's websites as well. You can find recent Colorado caselaw online (not searchable), but the older cases -- well, good luck.

Lexis seems to target the solo and small firm market more than West does. Lexis offers a "LexisONE" service with daily, weekly, and monthly access to certain databases at "reduced" rates. The rates are reduced, compared to the per-search and per-document rates, if you're going to do any real research. But they're still expensive. Check it out here. The rates are "good" compared to some of the alternatives, but they're not pocket change. If I choose one of these, either I'm going to feel the pain or a client is. I can, however, envision plenty of situations where it's going to be cheaper for a client to pay for one of these for a week than it would be for me to spend the extra billable time to locate documents in a print library. I'm sure that's the "sweet spot" Lexis is aiming for in its pricing.

I believe that as a policy matter all authoritative legal documents ought to be public domain. I am not a friend of the "pagination" arguments that West puts out to try to assert that it obtains a copyright interest in its page numbering (as a derivative of its 'compilation'). But I think West or Lexis are entitled to copyright protection of their headnotes. The headnotes are derivative works of the cases, but the research company gets copyright protection for its own originality and selection of headnote material. (I'm not so sure about those Lexis headnotes that just excise language from the cases -- there's selection, but otherwise no other added creativity.)

I don't have any anecdotal evidence of where someone lost a case because they didn't have good enough research. As you can tell from my post, the legal aid agencies and PD have pretty good access to legal research. But that might just be because Colorado actually provides for a PD system with full-time attorneys (not just appointments), and our legal aid offices also have access to electronic research.

Posted by: tph at February 26, 2005 07:23 PM

While I don't think it should be free to all, I certainly do think that the rates should be lower. In the days before "wexis", I believe most firms had to purchase the reporters and while large firms with money had the resources to purchase a variety of reporters, i'm sure small firms were limited to the jurisdiction in which they practiced. Now, with the "arrival" of the internet, data is far more accessible to all and ofcourse the dissemination of that data to practicitioners in the field should come at a nominal fee.

Imagine what "wexis" would offer were it a free service. I'm sure that some of the functionality that exists now would disappear. Perhaps it wouldn't be updated as often.

If it were to be free, who would run it? Would it still be owned by reed and west? Business wise, it doesn't really make sense. However, as I said in opening, I think there needs to be a structured pay schedule. Solo firms should be able to purchase a customized package and the fees for going outside that package shouldn't be exorbitant. Perhaps a little like a cell phone plan?

As a PD, I don't even know how much the state pays for my access but it is pretty much unlimited. It would be untrue for me to say that I am hampered in any way by not having full access to "wexis", because I do.

Posted by: Three Generations at February 27, 2005 11:37 AM

Thanks all for your pointers and thoughts. Thanks especially to tph for all those great cites! The Banks v. Manchester, Wheaton v. Peters, and West v. Mead are all core parts of my argument, but I hadn't seen the Patterson & Joyce article or all the stuff about documents being rendered authoritative by government regulations. Very interesting. I'm still digging on this, but it looks very promising.

In general, for those who are interested, my argument is that even headnotes should not get copyright protection b/c, even if they were innovative in 1879 when West began the National Reporter System, they're not innovative or creative now -- they're mechanical standards in the industry. That aside, public policy demands every citizen have free and equal access to the law -- the free part means you can't charge for it (not even a nominal or "reasonable" fee), while the equal part means everyone should benefit from the same finding aids (headnotes, key numbers, etc). One possible solution is a taxpayer-funded system run by a new gov't entity that will basically duplicate what Wexis does/has done. This wouldn't be as hard or expensive as West would like us to think; for example, the DOJ already has an electronic database of U.S. caselaw that's fairly complete and stretches back over 100 years. Whatever the cost, it would be worth it. Another part of the solution is medium-neutral citations so that West's page numbers become irrelevant. [link via Luminous Void]

This argument requires cutting through some serious cognitive dissonance about property and profit in our culture, but the bottom line is that free and equal access to the law is an essential requirement for a just common law system. So long as access to the law is governed by how much you can afford to pay, our system will be unnecessarily unjust.

That's what I'm arguing anyway. I told you it was quixotic. And because it is, all thoughts and furhter anecdotes/evidence are welcome, both for and against my argument. What doesn't kill it will make it stronger, right?

Posted by: ambimb at February 27, 2005 07:15 PM

I think headnotes are protected by copyright, though not to a great extent. Remember, copyright protects practically any smidgen of creativity, including creativity one adds to the public domain in preparing a derivative work like a headnote. The question of copyrightability is not whether having headnotes is a novel or creative idea. (Copyright doesn't protect the idea of headnotes at all.) The mechanical have-them-or-don't decision isn't a subject of copyright. Novelty is absolutely not a requirement of copyright in any case. The courts have been pretty clear that "creativity" does not require "novelty." It doesn't require artistry, either -- there's no value judgment about whether it's good work.

Selecting and paraphrasing the key points of a public domain case is enough creativity to get copyright protection -- but only for the headnotes. That protection will also be limited, because so much of the source material was public domain, and there are only so many ways to paraphrase a certain part of an opinion.

The reason I'm a little more skeptical about Lexis's headnotes is that, at least when I last used Lexis two years ago, they were simple excisions from the case text. There was less creativity added to the opinion.

Assuming headnotes are an important finding aid to which you think copyright should not apply, you will have to be able to answer the question, "if headnotes are not subject to copyright, will anyone have an incentive to produce them?" Would we still have them at all, and why? If you intend to assert that no part of any reporter system or database is copyrightable, then you have to answer the same question as to the whole system. And you have to make that argument without taking the cop-out of foisting onto court reporters and clerks new responsibilities to produce headnotes, syllabi, sophisticated databases, or other finding aids, all for free. (The strength of the headnote systems isn't really in the headnotes so much as the headnote indexing systems, anyway.) Most states now make efforts to have new opinions easily available, and some even permit citations in formats not tied to the National Reporter System. But don't expect them to do even more. Our courts don't have enough funding as it is.

I don't like backtracking to check comment threads on old posts because I don't keep very good track of where conversations are going on, so I probably won't follow this thread unless I'm lucky and remember to check back. I may carry this conversation into main posts on my blog, or you can post more follow-ups and I'll see those, or you can e-mail me and we'll continue talking that way. This is a very interesting issue to me, because I believe in the importance of accessibility as a policy issues, but I don't think we want to go so far as to say that there is no copyright protection whatsoever in legal resources that are published with "value-added" finding aids or other privately-produced reference materials.

Posted by: Tim Hadley at February 28, 2005 03:31 PM

Try to contact the solo and small practice section of the ABA and of some state bars. They will have some insights on this. Try to contact Jay Foonberg or read his books.

Posted by: John Steele at March 1, 2005 01:17 PM

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