I think this is rlevant to the folks on
this list --- FYI
February 11, 1999
Hon. Orinn G. Hatch
Chairman,
ommittee on the Judiciary
Washington, D.C. 20510-6275
RE: Collections of Information Antipiracy Act
Dear Senator Hatch:
I am one of the 2 lead attorneys who litigated
the successful recent copyright case against West
Publishing in the Southern District of New York and
the Second Circuit.
Yesterday (on February 10, 1999)West
represented to Judge John S. Martin, SDNY, that West
will seek certiorari to the U.S. Supreme Court on both
issues therein.
I thank you for your kind and thoughtful
letter of January 25, 1999 on this subject--and would
like to point out several additional facts with regard
to the attempts by the two major, foreign corporations
involved--to effectively monopolize access to U.S.
Law. CNET reported:
Rep. Howard Coble (R-North Carolina) and Sen.
Orrin Hatch (R-Utah)are once again
spearheading legislation to protect the "brow
sweat" and deep pockets of database creators
and publishers, such as WestLaw, Reed
Elsevier, which owns major periodicals, and
Lexis-Nexis.
"Developing, compiling, distributing, and
maintaining commercially significant
collections requires substantial investments
of time, personnel, and money," Coble said on
the House floor last month when he
reintroduced the Collections of Information
Antipiracy Act. "The bottom line is clear: it
is time to consider new federal legislation to
protect developers who place their materials
in interstate commerce against piracy and
unfair competition."
I ask that whatever is finally enacted have a
"carve-out" provision to except all federal and state
law before 1995--the year that it first became clear
that West and others were claiming a copyright in the
text part of judicial decisions actually authored by
judges. See the two second Circuit decisions (both
titled MATTHEW BENDER & COMPANY, INC. and HYPERLAW,
INC. v. WEST PUBLISHING CO., at 158 F.3d 693 (page
numbers) and 158 F.3d 674 (text of judges opinions)--
both just decided on November 3, 1998.
I want to make it clear that West and other
publishers are not seeking to "protect" just their
headnotes, key numbers and summaries-- but, rather,
the actual text of decisions written by judges of
federal and state courts.
In the action before the SDNY, West took the
position that it had a copyright on the opinion part
of the reports in its Supreme Court Reporters, Federal
Reporters and Federal Supplements. It also claimed a
copyright in the citations--the page numbering
references. The Court found otherwise--as did the
Second Circuit.
The effect of giving some sort of "super-
protection" to two companies which are owned by
foreign giants will to be monopolize the law--for in
many cases, the only valid copies of those cases
"belong" to West or Lexis.
I implore you to carve out this exception.
Moreover, I implore you to look into the secret
agreements between West and Lexis which originated in
the late 80's -- and which both have referred to in
court proceedings the 90's--but which remain secret.
These were agreements for the control of "Caselaw" and
"Statutes". They have resulted in a two entity
industry, where two giants control all of the major
on-line access to the law, and a good deal of the
book-based research.
I would propose the following language:
"Excepted from these provisions are the
judicial opinion portion and citations to
any collection of federal, state, or
administrative caselaw; and the
governmentally authored portions of, and
citations to collections of state and
federal statutes, codes and regulations."
Please do not give these corporations
ownership of U.S. law. Please do not increase the
cost of access to the law by more than 400% by
creating a protected monopoly that was gained in a way
which you do not understand. At the very least, cut
this portion out into a separate bill--and allow a
year for full and knowledgeable discussion by the
public, lawyers and judges. The Congress should know
(1) how these companies originally obtained many of
these cases, (2) the decision of Judge Martin with
regard to alleged threats by West, and (3) the methods
used to influence decision-makers regarding access to
these materials.
Sincerely,
Carl J. Hartmann, III
Attorney for HyperLaw, Inc.
126 Sussex Street
Jersey City, NJ 07302
hartmann@carroll.com
Voice: (201) 434-1738
Fax: (201) 434-3616
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