Comments of HyperLaw, Inc.
FDLP Study
Task 9B: US Court of Appeals’ Opinions
Preliminary Report
These comments are provided by HyperLaw, Inc. in response to FDLP Preliminary
Report concerning Task 9B:
Evaluate how United States Court of Appeals’ published slip opinions might be
included in the Federal Depository Library Program (FDLP) electronically,
although traditionally they have not been part of the FDLP in either paper or
microfiche format.
Comments were requested by February 16, 1996. The comments are being provided
via the Internet.
HyperLaw is a publisher of a CD-ROM consisting of opinions of the thirteen
Circuits of the United States Courts of Appeals and regularly uses the bulletin
boards operated by the Courts of Appeals as well as the Internet FTP site
operated by the Eleventh Circuit.
HyperLaw believes that court opinions disseminated by the FDLP should meet GPO
standards of authenticity and completeness, and should represent the most
authoritative and complete versions of the opinions disseminated by the
respective courts.
Since the FDLP has not previously provided this information and because of the
problems relating to authoritativeness, currency, and completeness of the
opinions, it would not seem to be appropriate at this time for the FDLP to
disseminate information that is not of the quality and authority level of the
other information disseminated through the program. The FDLP provides a stamp
of authority to the information it conveys, and the information needs to meet
appropriate standards. To the extent that information disseminated by the FDLP
may be immediately thereafter changed by the source, then the FDLP must be
prepared to disseminated those changes on the same basis.
HyperLaw believes that the most responsible and authoritative entity to
administer the initial preparation and dissemination of the opinions are the
courts themselves.
The primary focus at the present time also should be dissemination of
authoritative opinions without regard to visual attractiveness and searching
ability and a cost that does not exceed the incremental costs of dissemination.
Until this basic responsibility is met by the government, it should not expend
resources on making the opinions searchable or worry about appearance.
No barriers should be established, maintained, or sustained that would prohibit
or discriminate amongst not-for-profit entities (such as law schools and bar
associations) or for profit entities from redisseminating the opinions in
whatever form such entity desires. Nor should the government designate any
private party as the preferred or authoritative disseminator of core legal
information, whether such party is a law school or anyone else.
The courts should assure that final authoritative versions of the opinions
should be made available electronically as well as in paper.
Therefore, it is incumbent that the Task Force carefully analyze both the
opinions which it proposes to disseminate, and the responsibility and
accountability of the entity chosen to make such dissemination.
To avoid misinterpretation by those not familiar with the various nuances and
levels and types of federal court opinions, the Task Force should state in its
final report that:
(1) Although the 94 district courts have their opinions in electronic form,
only one court, the Eastern District of Pennsylvania, makes those opinions
available on public bulletin boards.
(2) The United States Supreme Court is the only court with identifiable
official final versions of opinions, as released by the Reporter of Decisions
Office. Although the Supreme Court does release its slip opinions in
electronic form, it does not release the final version as they appears in the
United States Reports even though the Court does in fact have those final
opinion in electronic form.
(3) The appellate slip opinions, after release of the private West Federal
Reporter, are not citable in litigation before most federal courts, and may
have subsequent changes.
The reason this is relevant is that a partial dissemination of some opinions
will lead many to believe that all new federal court opinions are being
released on the Internet. What is eventually done needs to be kept in context
so as not to obscure that which still needs to be accomplished.
It is also important that the factual predicates of the proposal be accurate
and complete.
The report does not attempt to quantify anything, including the number of
opinions, the number of megabyte per year, and the approximate costs of
dissemination.
In that regard, it is noted that the report seems to assume that it is costly
to provide dissemination of opinions on the Internet. The report also seems to
assume there is some relationship between what the Pacer systems charge for
access to the opinions, and the costs of providing the access.
The only analyses that have ever been made public as to the costs of providing
opinions on court bulletin boards were done by the 2nd and 7th Circuits why
concluded that the costs were under a few thousand dollars a year for a court.
No other analysis has ever been made public.
There is no question that dissemination using the Internet for initial
dissemination is far less expensive than dial up bulletin boards.
Currently, the Eleventh Circuit utilizes a private Internet service company,
Mindspring Enterprises, Inc. of Atlanta, Georgia, to provide anonymous FTP
access to Eleventh Circuit opinions. This anonymous FTP access permits anyone
on the Internet to access the files in the directory assigned to the Eleventh
Circuit on the Mindspring server. Although not technically sexy and
sophisticated, FTP delivery of information is highly efficient, precise, and
effective and is widely used on the Internet. New public domain FTP programs
make FTP directories appears as if they were just another drive on the computer
of the persons accessing the FTP site.
In order to provide a benchmark, we assume that there are 200 MB of published
and unpublished federal appellate opinion files per year (we believe the actual
amount is less).
Commercial retail providers of FTP services charges one fee for the account,
one fee for storage and another fee for what is called “bandwidth” which is
simply the megabytes that are loaded onto or off the FTP site. Sometimes, the
fees are blended together and they do not always make sense.
According to the published rates of Mindspring, the Eleventh Circuit is being
charged between $50 and $100 per month. Assuming 200 MB of opinions were to be
archived at any one time, based on Mindspring’s published rates, all published
and unpublished opinions for all thirteen Courts of Appeals could be made
archived and made available through Mindspring by anonymous FTP for only $6000
a year. This published rate provides up to 108 GB of transfers per year. This
means that for $6000 a year, over 500 law schools, publishers, bar
associations, or individuals may transfer all of 200 MB of opinion files to
their own systems. This should be compare to the $4000 that HyperLaw will pay
for a single user Pacer access this year.
Mindspring has stated that it will negotiate its rate for large sites as just
described and that there are less expensive pricing schemes for larger usage.
As an example, HyperLaw’s Internet provider will provide service that would
permit a cost for megabyte of under 1/2 cent assuming 60 hours a week of full
capacity and a $2000 per month commitment.
So it is necessary for the Task Force to readjust its cost frame of reference.
Moreover, the private sector dissemination costs are the proper ones to be
used by the Task Force and is consistent with the historic practice of the GPO
to use private printing companies.
The Task Force asked whether data should be made available in searchable form
or in proprietary formats such as Acrobat. One issue here are the inherent
costs increases in providing additional formats and interfaces and who should
bear the costs. We believe that the information should be provided in the
original format provided by the court. There are viewers available that permit
viewing of files other than Acrobat and we oppose selection of particular
proprietary formats.
Professor Henry Perritt of Villanova has made the point that “Courts that
assemble and publish value added information must permit anyone ... to obtain
upstream access to less value added parts of the bundle.” A corollary of that
proposition is that those who want the “less value added parts of the bundle”,
in this discussion FTP access to original files, should not be forced to pay
costs attributable to added value versions of the same information.
In other words, it is pretty clear, based upon the Eleventh Circuit experience,
that it is possible to disseminate the “upstream” original files at extremely
low costs. No one should not be forced to pay the costs of the extra bells and
whistles of so-called value added. Who would access the “upstream” original
files: private and public sector publishers including bar associations,
libraries, and law schools that will then rediseminate the information.
As a point of information, access through full text servers tends to be more
costly than direct access of information through FTP type services because of
the administrative costs in preparing the indexes and the required computer
resources in providing full text searching.
WHAT IN FACT IS BEING DISSEMINATED BY THE COURT OF APPEALS PACER SYSTEMS?
The report states that the slip opinions “are typically produced and
distributed to the court and paid/free subscribers, by contract vendors” and
then makes the assumption that the opinions made available on the court
bulletin boards are the same as those printed slip opinions.
The assumption is not accurate with respect to many of the courts. The version
of opinions made available on the bulletin boards:
(1) May be the manuscript version sent to the contract printers and may not
contain the corrections made by the contract printers.
(2) Do not contain, in general, the pagination of the slip opinions as
placed on the opinions by the slip printer, thereby removing essential
information needed for citation under the blue book rules, and, in some
situations, making internal cross-references not meaningful.
(3) Do not, for two circuits, contain the headnotes and summaries prepared
by the slip printers (in some situations, apparently, the contracts permit the
slip printers to hold a copyright in the headnotes).
(4) Do not, in many situations, include graphical and other appendices to
these opinions.
(5) Not infrequently the bulletin boards fail to make available all
opinions printed by the contract slip opinion printers or released by the
courts as published opinions.
(6) Not all of the bulletin boards post orders vacating and amending the
opinions: some do not at all and some sporadically.
So, it is clear that the product which the Task Force proposes to make
available through the FDLP is not the same information product available in
the printed slip opinions, and in some cases, lower in quality. Moreover, not
all courts are scrupulous as to disseminating changes to opinions that have
already been disseminated.
We are concerned that the dissemination of these opinions under the imprimatur
of the FDLP will imply a level of completeness and quality that does not exist,
and will encourage the courts to continue to disregard these issues. The FDLP
should consider whether the long term public interest will be served by
releasing opinions that have not gone through some type of verification
process.
THE LAW SCHOOL CONSORTIUM
The Task Force describes a consortium of “prestigious” law schools that
“presently is attempting to provide free access to most appellate opinions.”
The Task Force, in Alternative E, suggests the possibility of endorsing the law
school consortium and entering into a “partnership” with the consortium.
The law schools are merely another publisher. In fact, another description of
law schools would be “professional trade schools.” Some are private and some
are public. All are engaged in publication activities. Nor do we think that
it is relevant whether a law school is prestigious or not. The question is
whether the institutional is capable and willing to provide this service on an
ongoing basis in accordance with professional publishing standards and in
accordance with open federal non-discriminatory information policy without
false claims as to quality. In that regard, we note that some the slip
printers are institutionally better qualified to provide this service than law
schools.
HyperLaw believes that this is wholly inappropriate to use the law schools for
a number of reasons:
Despite the prestigious nature of the law schools, this does no mean that any
level of control as to authenticity or completeness has been put into place.
Of course, this would be difficult for the law schools, because they must rely
upon the information provided by the courts. All of the problems that exist
with the Court bulletin boards will persist.
The schools in the consortium are in no way prohibited from operating in many
ways like a commercial publisher and in ways not consistent with governmental
information policy.
We note some of the Law Schools have acted in a proprietary manner with respect
to the files. Typically, the law schools convert the files obtained by the
courts to HTML ... and then have asserted a copyright with respect to those
HTML files. For example, Emory Law School has posted the following copyright
notice:
“Copyright in the underlying marked up text files which implement the
footnote features of the original WordPerfect files of court decisions is
held by Emory School of Law, ITS. Distribution of this version on the Internet,
does not constitute consent to any use of the underlying footnote markup for
commercial redistribution either via the Internet or using some other form
of distribution.”
The reason for the Emory policy, as explained by the director of the project,
is:
“If you mean that we won't let you make money off of our HTML versions, you
are correct. If you claim that we discriminate because we don't offer the
cases through FTP... so be it.” January 31, 1996,
teknoids@listserv.law.cornell.edu.
We do not think that the Law School Consortium, as it were, as it is presently
operating and supervised, and following the principles that some of it
participates articulate, are appropriate for the dissemination of public
information, since they may and do act completely outside of public
accountability and believe they are free to undertake the commercialization of
the opinions. We also note, as to Emory, that the principle that Professor
Peritt enunciates, that the upstream documents must be as easily available, is
essentially rejected ... and Emory converts all files to a different format
prior to dissemination, obliterating important version information.
At present, HyperLaw is free to obtain any material from the GPO and republish
it without restriction, including Acrobat versions of files (which is
conceptually similar to an HTML file which is viewed by an HTML viewer).
Second, although the Law Schools may be prestigious, there is no indication
that prestige in any way adds to the quality and completeness of that which is
made available. The quality of what the Law Schools provide is self-limited by
the quality of what the courts make available on the BBS systems. Beyond that,
despite the prestigious nature of the law schools, not all of the law schools
provide any level of quality assurance and control.
Third, the operation is voluntary ... and not all of the schools apply
sufficient resources. As of February 1, 1996, one school was over 30 days
behind in making opinions for one of the circuits (the Second) available.
Another school does not actually use the court files, and obtains files from a
private source, and in the process removes the official slip opinion citations
(Ninth Circuit) and another uses file converters that strip out official
pagination (Sixth Circuit).
Fourth, it is inappropriate for either the Judiciary or the GPO to enter into a
relationship where a non-governmental entity to assume a governmental role
without following a strict Request For Proposal procedure together with quality
and performance requirements and requirements that the data be made available
to all, without discrimination.
Fifth, to date, we believe some of the schools have attempt to misrepresent
themselves as having some special imprimatur of the courts, when they do not,
and when absolutely nothing about the quality or completeness of the
information provided is different from that provided by a number of other
sources. In a sense, the law schools are “palming off.” In a sense, this is
unfair competition to the commercial providers who provide the same if not
better information.
In any event, what the law schools are doing electronically is equivalent to
what the slip printers do in paper. However, the slip printer in the process
create electronic files. It would seem logical to have the slip printers to go
ahead and prepare the files for electronic dissemination which essentially is
what is done in the Ninth Circuit. This would impose little additional work
for the slip printers and for the Circuits.
In the final analysis, the proper public policy position is to have the courts
(or the administrator for the courts) assume the role of primary archiver and
disseminator of court opinions, and provide gateways available to any
information disseminator. Given the relative low costs of FTP type
dissemination, there is not excuse for the courts not to make their original
files available in this manner.
If FTP servers were in operation, any law school would be free to collect and
republish the opinions on the Internet in competition perhaps with other law
schools and not-for-profits and in competition with private publishers.
RESPONSIBILITY AND ACCOUNTABILITY OF THE COURTS AND FOLLOWING THE FLOW OF
FUNDS:
The Task Forces makes this observation as to the courts: “Due to the
decentralized nature of the Courts, there is no guarantee all court of appeals
will participate. Nor can individual courts be forced to comply with a request
to send the opinions to GPO or the AO.”
First, there is nothing that keeps the GPO or the AO from accessing the court
bulletin boards and transferring the court files just as the law schools and
numerous commercial publishers do every day. Is the Task Force suggesting that
the Courts would not permit the GPO and the AO to access their bulletin boards?
Indeed, in one of the oddities, the AO could easily access each bulletin board
and use the Judiciary Automation Fund to pay for the Pacer Access charges,
which, incidentally, flow back into the same Automation Fund and do not flow
back to the courts (and seems to have nothing to do with the actual costs of
dissemination.)
Two, the courts appear seem to be responsive to accepting the dictates of law,
as it applies to opinion dissemination. For example, the Judicial Conference
was more than willing to use the authorization provided by Congress to charge
for access to Pacer to charge for access to court opinions.
And, one only needs to review Title 28 of the United States Codes to see
numerous dictates of Congress with which the courts willingly comply. For
example, 28 U.S.C. 411 states that “The decisions of the Supreme Courts shall
be printed, bound, and distributed in the preliminary prints and bound volumes
of the United States Reports as practicable after rendition ...”
It does not seem probable that the courts would risk a Constitutional
confrontation or a public relations disaster by refusing to turn over
electronic copies of opinions to the AO or to the GPO.
It is also noted by the Report that there was a concern as to “loss of income”
by the courts if GPO access were to be made available.
If the courts were properly pricing the access to the Pacer systems for the
court opinions, then the loss of income should be accompanied by a concurrent
reduction in costs to the courts, because the courts are supposed to be
charging the costs of dissemination. This leads one to conclude that the
courts charges for access to Pacer are substantially in excess of actual costs.
As noted above, HyperLaw’s 1996 Pacer charges will be twice what Judge Posner
estimated it would cost to make opinions available for the entire year on the
Seventh Circuit BBS. Moreover, we see here the practical consequences when
governmental agencies decide to obtain income through the sale of public
information. We also see that by collecting income for the sale of opinions,
there is no incentive for the courts to use lower costs dissemination methods
such as FTP.
COSTS:
The report does not attempt in any way to quantify costs, and the components of
costs in making electronic versions of court opinions available. Indeed, the
report does not in any way attempt to quantify any of the following:
Total Number of Published Opinions Per Year (which is about 7500).
Total Megabytes of Data Per Year (which is under 200 MB a year).
Costs of storing a year’s archive (20 years of opinions could be stored on a
single hard drive costing $1000).
Costs of Internet Access. Above, we estimate that for $6000 a year, a
commercial FTP provider could make opinions from all thirteen courts available
for one year.
As far as other costs which the report assumes to exist, it is important for an
analysis of the following costs components:
For example, were the GPO or the AO centrally to run the operation, how much of
the costs will be to establish a familiarity and control over the information,
and in a sense clone the knowledge and control of the information that already
exists in the clerk’s offices or at the slip printers of the court opinions?
What component of any costs are attributed to offering a full text retrieval
system as opposed to making the files available to third parties, including law
schools, to undertake the full text retrieval service?
What component of the costs are attributed to making the files available in a
visually attractive format?
In sum, the annual cost for the judiciary to provide anonymous FTP service on
the Internet through an Administrative Office server maintained by existing
personnel and existing facilities would not even be a blip on the judiciary’s
automation and telecommunications budget, and, conceivably it would cost more
to measure than it would cost to provide
The major cost in providing access to court opinions is the people time in
managing the constant in-flux of opinions. Each of the federal appeals courts
already have people on staff in the clerks offices who perform this function on
a day to day basis. They know which opinions are to be published and maintain
close contact with their slip opinion printers. In addition, the slip opinion
printers have this knowledge. On the other hand, anyone outside these
organizations must depend upon the work product of these people and would be
required to become familiar with the procedures of each of the circuits and to
track the ebb and flow of opinions. So, centralizing this function can only be
more expensive, and can only result in higher costs and perhaps lower quality,
and, may create a self-perpetuating unit that will be obsolete with one more
evolution in technology. Each circuit could be assigned a separate directory,
and would be responsible for the maintenance and upkeep of the files.
In circuits where there are existing slip opinion printers, it would be
possible to require the printers to not only prepare a printed version of an
opinion, but to provide an electronic version with the same information for
placement on an FTP server at the Administrative Office in Washington
(formalizing what is essentially being done in the Ninth Circuit.) In those
circuits where slip opinion preparation has been brought into the clerk’s or
court executive’s office, then copies of the opinions would be placed on the
FTP servers located physically at the AO’s offices.
If the circuit offices do not cooperate, which is highly unlikely, then the AO
may merely take the opinions off of the bulletin boards. If the circuits do
not wish to make their opinions available in electronic form, again highly
unlikely, then the public will not have access to the opinions. Then, I would
assume the public would wish to know why it funded over a billion dollars for
technology for the courts in the last few years.
CONCLUSION
We believe that the Task Force has raised a number of important issues. We
were not able to address all of the issues presented but hope we have been able
to supply additional facts and perspective.
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Alan D. Sugarman Federal Appeals on Disc tm CD-ROM ::
President Opinions of US Courts of Appeals ::
1993 to Date - All Circuits ::
HyperLaw, Inc. ® ::
P.O. Box 1176 DO NOT SHORT CIRCUIT YOUR CLIENTS ::
New York, NY 10023 ::
sugarman@hyperlaw.com 212-787-2812 212-496-4138(fax) ::
::
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