[*] Copyright 1996 James H. Wyman. 1996 Florida State University Law Review Ausley Scholarship Paper. Return to text.

[**] The author thanks his mother, Marjory R. Moran, Esq., who taught him a thing or two about principle, and Mr. DuBose Ausley, whose generous financial support facilitated much of the research for this Comment. Return to text.

[1] FRANZ KAFKA, THE TRIAL 115 (Willa & Edwin Muir trans., Schocken Books 1988) (1925). Return to text.

[2] A number of communities throughout the United States have set up, generally through public libraries, FreeNet systems that provide free access to the Internet. See Rob Pegoraro, Free; The Info Freeway; On-Line on the Cheap, WASH. POST, June 28, 1995, at R5. Return to text.

[3] See Search Full Text of the Congressional Record-104th Congress, available at http://thomas.loc.gov/home/r104query.html (Aug. 16, 1996). Return to text.

[4] See, e.g., GPO Access on the Web, available at http://thorplus.lib.purdue.edu/vlibrary/reference/gpo/index.html (Aug. 16, 1996). Return to text.

[5] Both WESTLAW and LEXIS charge upwards of $200 per hour for the use of their services. See Susan Hansen, Fending Off the Future, AM. LAW., Sept. 1994, at 76. Return to text.

[6] Marbury v. Madison, 5 U.S. 137, 177 (1803). Return to text.

[7] Although a bulletin board system (BBS) is not strictly a part of the Internet, each U.S. Court of Appeals has a BBS through which decisions can be retrieved for 75 cents a minute. Laura Mansnerus, Easing Limits on Legal Publishing, N.Y. TIMES, Oct. 9, 1995, at D5. In addition, many state supreme courts place their opinions on a BBS as well. However, a number of courts delete older cases on their BBSs and replace them with newer cases. Morenike Efuntade, Alternative Case Citation Issue Examined by Joint DOJ-Judicial Group, U.S. L. WEEK-DAILY ED., May 1, 1995, available in LEXIS, News library, Wires file. Moreover, a BBS can only be accessed by dialing-usually while incurring long distance tolls-a dedicated phone line the court has set up for its BBS. See American Civil Liberties Union v. Reno, 929 F. Supp. 824, 833-34 (E.D. Pa. 1996). Return to text.

[8] See, e.g., Bill Rankin, Law Libraries: Emory Offering Court Rules, Legal Documents, ATLANTA J. & CONST., Feb. 14, 1996, at D7. Return to text.

[9] Decisions of the U.S. Supreme Court, available at http://www.law.cornell.edu/supct/supct.table.html (Aug. 16, 1996) (providing all decisions since 1990). Return to text.

[10] A list of the U.S. Courts of Appeals, the addresses of the Web sites containing their opinions, and the dates of the earliest opinions available may be found in the Appendix to this Comment. Return to text.

[11] As of August 1996, 19 state supreme courts had World Wide Web sites that provided and archived their opinions. A list of these courts, their Web site addresses, and the dates of the earliest opinions available may be found in the Appendix to this Comment. Return to text.

[12] See Proposed Final Judgment and Competitive Impact Statement, United States v. Thomson Corp., 61 Fed. Reg. 35,250, 35,261 (1996) ("The Internet does not provide access to historical opinions."). Return to text.

[13] Id. ("[T]he case law offered on the Internet does not provide citations that are accepted by courts or are relied on by attorneys."). Return to text.

[14] See, e.g., D.C. CIR. R. 28(b) ("Citations to decisions of this court shall be to the Federal Reporter."); 3D CIR. R. 28.3(a) ("[C]itations to federal opinions that have been reported shall be to the United States Reports, the Federal Reporter, the Federal Supplement or the Federal Rules Decisions . . . ."); MISS. R. APP. P. 28(e) ("[A]ll Mississippi cases shall be cited to both the Southern Reporter and, in cases decided prior to 1967, the official Mississippi Reports."); IND. R. APP. P. 15(C) ("The North [E]astern Reporter shall constitute the official reporter of the Indiana Supreme Court and the Indiana Court of Appeals."). Return to text.

[15] West claims that the pagination in its reporters is a reflection of its copyrighted selection and arrangement of cases and that the use of its page numbers therefore constitutes copyright infringement. See West Publishing Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1227 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987); see also discussion infra part III.A. Although West does not claim copyright in its case reporter pagination per se, see Joint Stipulation of Facts 31, Oasis Publishing Co., Inc. v. West Publishing Co., 924 F. Supp. 918 (D. Minn. 1996) (No. 3-95-563), for simplicity's sake, this Comment treats West's claim of copyright in its selection and arrangement of cases as if it were a claim of copyright in the pagination of its reporters.

On February 26, 1996, the Thomson Corporation, a diversified Canadian publishing concern, announced that it was purchasing West Publishing Company for $3.43 billion dollars. See Iver Peterson, Thomson to Buy Legal Publisher in a $3.43 Billion Cash Accord, N.Y. TIMES, Feb. 27, 1996, at D1. The Justice Department gave conditional approval to the purchase on June 19, 1996. See Iver Peterson, West Publishing Purchase by Thomson is Approved, N.Y. TIMES, June 20, 1996, at D6. In addition to requiring West to sell off 58 electronic publications, the Justice Department's settlement also requires West to license the pagination of its case reporters. Id. The proposed final judgment specifically states, however, that the settlement "should not be read to suggest that . . . a license is required" and that the settlement "shall have no impact whatsoever on any adjudication concerning these matters." Proposed Final Judgment and Competitive Impact Statement, United States v. Thomson Corp., 61 Fed. Reg. 35,250, 35,251 (1996). The pagination license agreement itself provides for an escalating scale of royalties that begins at a yearly rate of $.09 per 1,000 characters and increases to a yearly rate of $.13 per 1,000 characters by the third year. Id. at 35,254. Critics have characterized the agreement as being too expensive, and one CD-ROM publisher who does not currently use West's pagination estimated that a license would increase costs by 20 percent. Richard C. Reuben, Creating a Gentle Publishing Giant, A.B.A. J., Aug. 1996, at 22. Return to text.

[16] Star pagination is "a feature whereby a published case . . . includes the internal page breaks from another publisher's version of the case." Oasis Publishing Co., Inc. v. West Publishing Co., 924 F. Supp 918, 921 (D. Minn. 1996). Return to text.

[17] 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987). Return to text.

[18] 499 U.S. 340 (1991). Return to text.

[19] See West Publishing Co. v. Mead Data Cent., Inc., 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987); see also discussion infra part III.A. Return to text.

[20] 33 U.S. 591 (1834). Return to text.

[21] See Craig Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendancy, 83 MICH. L. REV. 1291, 1358 (1985). Return to text.

[22] Id. at 1365. Return to text.

[23] Id. at 1367 (quoting Letter from Richard Peters, Jr. to William Cranch (Aug. 14, 1828)). Return to text.

[24] Id. at 1370. The first three of the four volumes of Alexander Dallas, the unofficial first Reporter of Decisions who died in 1817, had already entered the public domain. Id. at 1366 n.428. The 45 pages of Supreme Court decisions in Dallas' fourth volume were apparently of insufficient interest to his heirs and assigns to warrant litigation. Id. William Cranch, the Court's second Reporter of Decisions, agreed to settle with Peters out of court in return for 50 copies of Peters' Condensed Reports. Id. at 1369. Return to text.

[25] See L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. REV. 719, 732 (1989). Return to text.

[26] Wheaton v. Peters, 33 U.S. 591, 661 (1834). Return to text.

[27] Congress has the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. CONST. art. I, 8, cl. 8. Return to text.

[28] Wheaton, 33 U.S. at 664. Return to text.

[29] Patterson & Joyce, supra note 25, at 733. Return to text.

[30] Wheaton, 33 U.S. at 668. Return to text.

[31] Id. at 638. Return to text.

[32] Id. at 619-20. Return to text.

[33] Patterson & Joyce, supra note 25, at 734. Return to text.

[34] Id. at 742. Return to text.

[35] 128 U.S. 244 (1888). Return to text.

[36] Id. at 253:

Judges . . . can themselves have no pecuniary interest or proprietorship, as against the public at large, in the fruits of their judicial labors. . . . The question is one of public policy, and there has always been a judicial consensus, from the time of [Wheaton], that no copyright could, under the statutes passed by [C]ongress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties. The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all . . . .
Return to text.

[37] 128 U.S. 617 (1888). Return to text.

[38] Id. at 619-20. Return to text.

[39] Id. at 622. Return to text.

[40] Id. Return to text.

[41] Id. at 625. Return to text.

[42] Id. at 667. Because Myers had apparently failed to deposit volume 32 for copyright protection by the required deadline of three months following publication, the Court reversed and remanded the circuit court's decree with respect to that volume. Id.; see also id. at 655. Return to text.

[43] Id. at 647. Return to text.

[44] Id. at 649. Return to text.

[45] Id. Return to text.

[46] Id. at 661. Return to text.

[47] Id. at 661-62 (quoting Myers v. Callaghan, 20 F. 441, 442 (C.C.N.D Ill. 1884)) (emphasis added). Return to text.

[48] Patterson & Joyce, Monopolizing the Law, supra note 25, at 739 (quoting EATON S. DRONE, A TREATISE ON THE LAW OF PROPERTY IN INTELLECTUAL PRODUCTIONS IN GREAT BRITAIN AND THE UNITED STATES 156 (1879)). Return to text.

[49] 169 F. 386 (2d Cir. 1909) (per curiam), appeal dismissed per stipulation, 223 U.S. 738 (1911). Return to text.

[50] THOMAS A. WOXLAND & PATTI J. OGDEN, LANDMARKS IN AMERICAN LEGAL PUBLISHING 41 (1990). The need for low-cost sets of Supreme Court opinions was understandable: complete sets of the 103 volumes of the U.S. Reports cost 500 dollars in 1882. Id. Lawyers' Co-op sold their editions for a dollar per volume. Id. Return to text.

[51] Lawyers' Co-op, 169 F. at 386. Return to text.

[52] Id. Return to text.

[53] Id. at 391. Return to text.

[54] Id. Return to text.

[55] Id. Return to text.

[56] Id. at 390. Return to text.

[57] Id. Return to text.

[58] See Howell v. Miller, 91 F. 129 (6th Cir. 1898). The Lawyers' Co-op trial court quoted Justice Harlan's opinion in Howell:

If Miller had cut from Howell's books, delivered to him by the state, the general laws of Michigan as therein printed, and the pages so cut out had been used when his compilation was printed-if this had been done, and nothing more-there would have been no ground of complaint.

Lawyers' Co-op, 169 F. at 390-91 (quoting Howell, 91 F. at 137). Return to text.

[59] Lawyers' Co-op, 169 F. at 391. Return to text.

[60] See id. at 390. Return to text.

[61] See id. ("[T]he statute prescribing his duties does not point out how the cases shall be arranged into volumes and printed, but to fittingly reproduce the decisions and opinions in volumes it is necessary to supply pagings, together with an orderly arrangement of the cases."). Return to text.

[62] 799 F.2d 1219, 1225-26 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987); see also discussion infra part III.A. Return to text.

[63] Lawyers' Co-op, 169 F. at 390. Return to text.

[64] WOXLAND & OGDEN, supra note 50, at 38. Return to text.

[65] Id. This complaint provides an eerie parallel to the issue facing the legal publishing industry today. The print publication of court opinions still lags behind the date courts issue their opinions (albeit to a considerably lesser extent than in John West's day). However, the electronic publication of court opinions is virtually instantaneous. The modern-day version of the complaint John West heard is that these instantly published electronic opinions are useless because courts expect citations to the print versions. For a solution to this problem, see discussion infra part IV. Return to text.

[66] Id. Return to text.

[67] Id. Return to text.

[68] Id. Return to text.

[69] Id. Return to text.

[70] Id. Return to text.

[71] Id. Return to text.

[72] Id. Return to text.

[73] Id. Return to text.

[74] Id. at 40 (quoting A Symposium of Law Publishers, 23 AM. L. REV. 396, 406-407 (1889)). Return to text.

[75] Id. at 60. Return to text.

[76] Id. Return to text.

[77] Id. Return to text.

[78] Id. Return to text.

[79] Id. Return to text.

[80] Id. (quoting 1 FIRST DECENNIAL EDITION OF THE AMERICAN DIGEST vii (1908)). Return to text.

[81] See Robert Berring, On Not Throwing Out the Baby: Planning the Future of Legal Information, 83 CAL. L. REV. 615, 633 n.66 (1995). Professor Berring, in an "informal survey," found that only seven of the states without official reporters required citation to West publications. Id. at 631 n.61. However, in the absence of any alternative citation system, it is difficult to imagine a different source, save perhaps the not terribly economical WESTLAW or LEXIS, to which a court in the remaining 12 states could allow citation. Return to text.

[82] See id. at 624 n.37. West only admits to publishing the official reporter for eight states. See Joint Stipulation of Facts 72, Oasis Publishing Co., Inc. v. West Publishing Co., 924 F. Supp. 918 (D. Minn. 1996) (No. 3-95-563). Return to text.

[83] Professor Berring's informal survey turned up only 15 of 101 federal district and circuit courts that require citation to West publications. Id. at 631 n.61. Although West is the only publisher of lower federal court decisions in comprehensive book form, see Matthew Bender & Co., Inc. v. West Publishing Co., No. 94 Civ. 0589, 1995 U.S. Dist. LEXIS 17688, at *1-2 (S.D.N.Y. Nov. 28, 1995), presumably there is some flexibility allowed in citation to opinions not yet published in the Federal Reporter or the Federal Supplement. Return to text.

[84] THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 169-215 (15th ed. 1991). Aside from Law Reviews, a number of courts require adherence to The Bluebook's citation requirements in court documents. See, e.g., FLA. R. APP. P. 9.800(n) ("All other citations shall be in the form prescribed by the latest edition of The Bluebook . . . ."). Return to text.

[85] William G. Harrington, A Brief History of Computer-Assisted Legal Research, 77 LAW LIBR. J. 543, 544 (1985). Return to text.

[86] Id. Return to text.

[87] Id. Return to text.

[88] Id. at 545. Return to text.

[89] Id. Return to text.

[90] Id. at 546. Return to text.

[91] Id. Return to text.

[92] Id. Return to text.

[93] Id. Return to text.

[94] Id. at 547-48. Return to text.

[95] Id. at 549-50. Return to text.

[96] Id. at 550. Return to text.

[97] Id. Return to text.

[98] Id. Return to text.

[99] Id. at 551. Return to text.

[100] Id. Return to text.

[101] Id. at 552-53. Return to text.

[102] Id. at 553. Return to text.

[103] Id. Return to text.

[104] Id. Return to text.

[105] Id. Return to text.

[106] Id. Return to text.

[107] Id. at 554. Return to text.

[108] Id. Return to text.

[109] Id. Return to text.

[110] See Dan Oberdorfer, West-Mead Data Copyright Suit Hearing Slated, NAT'L L.J., Sept. 9, 1985, at 20. Return to text.

[111] KAFKA, supra note 1, at 147-48. Return to text.

[112] Id. Return to text.

[113] West Publishing Co. v. Mead Data Cent., Inc., 616 F. Supp 1571, 1574 (D. Minn. 1985), aff'd, 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987). Return to text.

[114] West Publishing Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1223 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987). West and MDC eventually settled out of court, with MDC reportedly agreeing to pay "tens of millions of dollars" to purchase a license from West for the use of its page numbers. Stephen Labaton, Westlaw and Lexis Near Truce, N.Y. TIMES, July 19, 1988, at D5. Return to text.

[115] Id. Return to text.

[116] See 17 U.S.C. 102(a) (1994). Return to text.

[117] Mead, 799 F.2d at 1223 (citing Hutchinson Tel. Co. v. Fronteer Directory Co., 770 F.2d 128, 131 (8th Cir. 1985)). Return to text.

[118] Id. (citing Goldstein v. California, 412 U.S. 546, 561 (1973); MELVIN NIMMER, 1 NIMMER ON COPYRIGHT 1.08(C)(1) (1985)). Return to text.

[119] Id. at 1223-24 (citing 17 U.S.C. 101, 103). Return to text.

[120] Id. at 1224. Return to text.

[121] Id. Return to text.

[122] Id. at 1225 ("The teaching of Callaghan with respect to the issues before us does not come through with unmistakable clarity."). Return to text.

[123] Id. Return to text.

[124] Id. Return to text.

[125] Id. ("[T]he ultimate rationale for the [Lawyers' Co-op] decision was that . . . because the reporter's statutory duties required case arrangement and pagination, these should not be considered the product of the reporter's intellectual labor."). Return to text.

[126] Id. Return to text.

[127] Id. Return to text.

[128] Id. at 1226 (quoting Banks Law Publishing Co. v. Lawyers' Co-op. Publishing Co., 169 F. 386, 389-90 (2d Cir. 1909)). Return to text.

[129] Id. Return to text.

[130] Id. Return to text.

[131] Id. Return to text.

[132] Id. Return to text.

[133] Id. Curiously, the Third Circuit came to the opposite conclusion about West during litigation unrelated to copyright claims. See Lowenschuss v. West Publishing Co., 542 F.2d 180, 186 (3d Cir. 1976) ("Where, as here, no official reporter exists, a convincing argument may be made that West, an unofficial reporter, performs the same function as an official reporter and should be accorded the identical protection from liability for defamation when it publishes verbatim opinions of the courts."). Return to text.

[134] Mead, 799 F.2d at 1226. It is interesting to speculate what the Mead court would have made of Florida's codified arrangement with West. See FLA. STAT. 25.381 (1995) ("[T]he Supreme Court and the Attorney General shall jointly enter into a contract with West Publishing . . . providing for the publication . . . of Florida Cases . . . ."). A Minnesota federal district court would later find that regardless of whether Florida viewed West as its official reporter, the state's contractual agreement reserving case arrangement copyright in West eliminated official status as a dispositive consideration. See Oasis Publishing Co., Inc. v. West Publishing Co., 924 F. Supp. 918, 930 (D. Minn. 1996); see also discussion infra part III.B. Return to text.

[135] Mead, 799 F.2d at 1226. Return to text.

[136] It is worth noting at this point that the majority did not rely upon anything contained in the record for its examination of West's arrangement and pagination process. See id. at 1237 (Oliver, J., dissenting) ("The record in this case does not indicate in any way how or by whom West's page numbers are, in fact, created."). In later litigation, West would stipulate as to its arrangement process. See infra note 234 and accompanying text. Return to text.

[137] Mead, 799 F.2d at 1226. Return to text.

[138] Id. Return to text.

[139] Id. at 1226-27. The court also found that West met the originality requirement because West did not copy its cases from another source. Id. at 1227. Return to text.

[140] Id. Return to text.

[141] Id. Return to text.

[142] Id. Return to text.

[143] Id. Return to text.

[144] Id. Return to text.

[145] Id. Return to text.

[146] Id. Return to text.

[147] Id. Return to text.

[148] Id. at 1228. Return to text.

[149] Id. Return to text.

[150] 770 F.2d 128 (8th Cir. 1985). Return to text.

[151] Mead, 799 F.2d at 1228. Return to text.

[152] 499 U.S. 340 (1991). Return to text.

[153] An exhaustive look at Feist and its ramifications is beyond the scope of this Comment. For a detailed examination of Feist, see Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338 (1992). Return to text.

[154] Feist, 499 U.S. at 342. Return to text.

[155] Id. at 342-43. Return to text.

[156] Id. at 343. Return to text.

[157] Id.  Return to text.

[158] Id. at 344. Return to text.

[159] Id.  Return to text.

[160] Id. at 345. Return to text.

[161] Id.  Return to text.

[162] Id. at 346. Return to text.

[163] Id. at 347. Return to text.

[164] Id. at 348 (citations omitted). Return to text.

[165] Id.  Return to text.

[166] Id.  Return to text.

[167] Id. at 349. Return to text.

[168] Id.  Return to text.

[169] The Court cited Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (9th Cir. 1937), and Jeweler's Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83 (2d Cir.) cert. denied, 259 U.S. 581 (1922), as examples from this line of cases. Return to text.

[170] Feist, 499 U.S. at 352. Return to text.

[171] Id. at 353. Return to text.

[172] 17 U.S.C. 101 (1994). Return to text.

[173] Feist, 499 U.S. at 358. Return to text.

[174] Id.  Return to text.

[175] Id. at 361. Return to text.

[176] Id. at 362. Return to text.

[177] Id.  Return to text.

[178] Id. at 363. Return to text.

[179] Id. at 364. Return to text.

[180] 770 F.2d 128 (8th Cir. 1985). Return to text.

[181] See Mead, 799 F.2d at 1223 (citing Hutchinson, 770 F.2d at 131). Return to text.

[182] See id. at 1228 (citing Hutchinson, 770 F.2d at 128). Return to text.

[183] Carl J. Khalil, Are Page Numbers Really Copyrightable? The Effect of Feist on the West Publishing v. LEXIS Case, 76 J. PAT. & TRADEMARK OFF. SOC'Y 807, 811 (1994). Return to text.

[184] Mead, 799 F.2d at 1226 (citation omitted). Return to text.

[185] 768 F.2d 145 (7th Cir. 1985), cert. denied, 474 U.S. 1061 (1986). Return to text.

[186] Id. at 149. The Rockford Map court relied in part on Jewelers' Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83 (2d Cir), cert. denied, 250 U.S. 581 (1922), one of the two cases the Feist Court used as exemplars of the discredited "sweat of the brow" doctrine. See Feist, 499 U.S. at 352 ("[S]ome courts misunderstood the [copyright] statute."). Return to text.

[187] See Feist, 499 U.S. at 358. Return to text.

[188] Rockford Map, 768 F.2d at 149. Return to text.

[189] Mead, 799 U.S. at 1226. Return to text.

[190] Id. at 1227. Return to text.

[191] Id. at 1224. Return to text.

[192] See Khalil, supra note 183, at 817 ("One would imagine that the opinions arrive already 'separated' since they originate from separate courts.") Return to text.

[193] West would later explain its arrangement process in Oasis Publishing Co., Inc. v. West Publishing Co., 924 F. Supp. 918 (D. Minn. 1996). See infra note 234 and accompanying text. Return to text.

[194] 661 So. 2d at 19-141. A list of Florida decisions without published opinions occupies the first 18 pages of the volume. See id. at 1-18. Return to text.

[195] See id. at 142-76. Return to text.

[196] See id. at 177-202. Return to text.

[197] See id. at 203-39. Return to text.

[198] See id. at 239-55. Return to text.

[199] See id. at 255-77. Return to text.

[200] See id. at 278-305. Return to text.

[201] See id. at 306. Return to text.

[202] See 499 U.S. at 363. Return to text.

[203] Id. at 362. Return to text.

[204] Id. at 363. Return to text.

[205] Id.  Return to text.

[206] Id.  Return to text.

[207] See Callaghan v. Myers, 128 U.S. 617, 661 (1888). Return to text.

[208] See id. at 659. Return to text.

[209] Mead, 799 F.2d at 1225. Return to text.

[210] See id. at 1226. Return to text.

[211] See Patterson & Joyce, supra note 25, at 742. Return to text.

[212] Id. at 803. Return to text.

[213] Id. at 807. Return to text.

[214] According to Professors Joyce and Patterson, one of the many flaws in the Mead decision was a conflation of unfair competition and copyright law. See id. at 778. The court continually focused on the market effects of star pagination-a consideration irrelevant to a finding of copyrightability and subsequent infringement. See id. at 781. Return to text.

[215] Although it made no mention of the Mead decision, the Feist Court liberally cited to the Joyce and Patterson article. See 499 U.S. 340 at 347-49, 351, 361-62. By embracing the Joyce and Patterson view of copyright, it is fair to say that the Feist Court implicitly endorsed the article's understanding of the Wheaton public policy of encouraging maximum access to the law. Return to text.

[216] U.S. CONST. art. I, 8, cl. 8. Return to text.

[217] Patterson & Joyce, supra note 25, at 810. Return to text.

[218] See Plaintiff's Brief 25, Oasis Publishing Co., Inc. v. West Publishing Co., (S.D. Fla.) (No. 95-0481), available at gopher://essential.essential.org:70/00/pub/tap/Legal/oasis. Return to text.

[219] See id. 24. Return to text.

[220] See FLA. STAT. 25.381 (1995). Return to text.

[221] See Mead, 799 F.2d at 1226. Return to text.

[222] See id. Return to text.

[223] See id. at 1225. Return to text.

[224] See Matthew Bender & Co., Inc. v. West Publishing Co., No. 94 Civ. 0589, 1995 U.S. Dist. LEXIS 17688, at *1-3 (S.D.N.Y. Nov. 28, 1995). Return to text.

[225] Matthew Bender & Co., Inc. v. West Publishing Co., No. 94 Civ. 0589, 1996 U.S. Dist. LEXIS 5871, at *35 (S.D.N.Y. May 2, 1996). Return to text.

[226] Oasis Publishing Co., Inc. v. West Publishing Co., 924 F. Supp. 918, 931 (D. Minn. 1996). Return to text.

[227] Id. at 921.Return to text.

[228] Id. The Oasis complaint also alleged four other counts: (1) that West had created and was maintaining an illegal monopoly in violation of 15 U.S.C. 2; (2) that West had created "a dangerous probability of monopolization" in violation of 15 U.S.C. 2; (3) that the alleged West monopoly also violated section 542.19, Florida Statutes; and (4) that West was attempting to create a monopoly under section 542.22, Florida Statutes. Id.   Return to text.

[229] Id.   Return to text.

[230] Oasis, 924 F. Supp. at 922. Return to text.

[231] Id. at 923. Return to text.

[232] Id. at 924. Return to text.

[233] Id. As in Mead, the court's depiction of West as actively "divid[ing] the cases by state" apparently overlooked the fact that the opinions arrive already separated by state. See supra note 192 and accompanying text. Return to text.

[234] Oasis, 924 F. Supp. at 924. West had stipulated as to the arrangement of the Southern Reporter as follows:

Reports of opinions, full[-]text memorandum decisions (called "jacketed memorandums" by West because West provides them with a separate case folder "jacket"), consecutively[ ]issued memorandum dispositions (such as a batch of review-denied or appeal-denied decisions by a state appellate court) and then memorandum decisions reported in tables are generally first coordinated and arranged in the following order: Supreme Court of Alabama; Court of Civil Appeals of Alabama; Court of Criminal Appeals of Alabama; Supreme Court of Florida; Court of Appeals of Florida; Supreme Court of Louisiana; Court of Appeals of Louisiana; Supreme Court of Mississippi.

Within each jurisdiction, reports of opinions and jacketed memorandum decisions come first and within that grouping, are arranged in filing date order. Other memorandum case reports, if any, are grouped together and come next. Tables of dispositions, if any, generally are coordinated and arranged next.

In addition to this general arrangement, West has a procedure whereby it links two or more case reports together in a "precede and follow" arrangement which overrides any general arrangement rule that would otherwise split the two case reports.

In Southern Reporter, all cases from the Florida Supreme Court precede cases from the Florida Appellate Courts. Within each court division the cases are ordered by case type: Florida Supreme Court opinions precede Florida Supreme Court memorand[a] which precede Florida Supreme Court unpublished opinion tables, which precede the Florida district court opinions (Fla. App. 1st Dist., Fla. App. 2[d] Dist., etc.).

Page numbers in Southern Reporter and Florida Cases are input by automated machinery used by West in its publication process of publishing reports of Florida court decisions.

Joint Stipulation of Facts 33-37. Return to text.

[235] Oasis, 924 F. Supp. at 924. The court provided several examples illustrating the override process:

For example, the West editor might choose to process a case more quickly where the case otherwise would be destined for a later volume, so that the case instead will follow a related decision in the same volume. Similarly, West may decide to speed its process and publish a decision immediately after a related decision, disregarding the date the decisions were rendered. Or West might choose to combine separate decisions into a single published opinion.

Id. (citations omitted). Return to text.

[236] Id. at 924-25.   Return to text.

[237] See id. at 925. Return to text.

[238] Id.  Return to text.

[239] Id.   Return to text.

[240] Id. As support for this holding, the court quoted Justice Blatchford's dictum in Callaghan, see supra text accompanying note 45, without mentioning the Callaghan Court's approving quotation of the lower court's countervailing language, see supra text accompanying note 47. Return to text.

[241] Oasis, 924 F. Supp. at 926. Return to text.

[242] Id.  Return to text.

[243] Id.  Return to text.

[244] See id. at 926-29. Return to text.

[245] Id. at 929-30. Oasis actually argued that Florida Cases-the West-published volume that contains only the Florida decisions published in the Southern Reporter and which uses the Southern Reporter's pagination-was in the public domain. Id. at 930. Return to text.

[246] Id. at 920; see also infra text accompanying notes 416-20. Return to text.

[247] Id.  Return to text.

[248] Id. at 930 ("West denies it publishes the official reports of Florida."). Return to text.

[249] Id. at 929-30 (citing FLA. STAT. 25.381 (1995)). Return to text.

[250] Id. at 930 & n.6. West published the notice in Volume 37 of the Second Series of the Southern Reporter. See insert facing 37 So. 2d at viii. Return to text.

[251] 924 F. Supp. at 930. Return to text.

[252] Id.  Return to text.

[253] Id.; see also Florida Cases, July 1, 1995-June 30, 1997, Contract for Publication and Distribution, at D.2 (on file with author): "The Synopsis, Syllabi and Key Number Digest classifications, Index Digest, Table of Statutes Construed, and arrangement of cases, editorially prepared and supplied by the FIRST PARTY and included in the volumes of FLORIDA CASES, are subject to copyright and will be copyrighted by the FIRST PARTY." Return to text.

[254] Oasis, 924 F. Supp. at 930-31. Return to text.

[255] Id. at 931. Return to text.

[256] See FLA. STAT. 119.01 (1995) ("[A]ll state, county, and municipal records shall be open for personal inspection by any person."). Return to text.

[257] Oasis, 924 F. Supp. at 931 (citing Times Publishing Co. v. Ake, 660 So. 2d 255 (Fla. 1995)). Oddly enough, the court did not address Oasis's claim that Florida Cases is a public record subject to the Florida Constitution, which provides that:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf . . . . This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder . . . .

FLA. CONST. art. I, 24(a) (emphasis added). Admittedly, this would still have raised the Supremacy Clause problem the court discussed. In addition, the agreement between West and Florida, while ostensibly violative of the Florida Constitution, is nonetheless a valid contract. See infra text accompanying notes 258-59. Return to text.

[258] Oasis, 924 F. Supp. at 931. Return to text.

[259] Id.   Return to text.

[260] See Transcript of Oral Argument at 51 ("I suspect . . . I'm simply a whistle stop on the way to the Circuit."). Return to text.

[261] Oasis, 924 F. Supp. at 925; see also West Publishing Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1227 (8th Cir. 1986) (finding internal pagination "an important part" of West's arrangement"). Return to text.

[262] See Oasis, 924 F. Supp. at 925. Return to text.

[263] Transcript of Oral Argument at 25 (quoting Prof. Robert Berring). Return to text.

[264] 17 U.S.C. 102(b) (1994). Return to text.

[265] Oasis, 924 F. Supp. at 925. Return to text.

[266] See supra discussion part II.A.1-3. Return to text.

[267] West Publishing Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1228 (8th Cir. 1986); Oasis, 924 F. Supp. at 926. Return to text.

[268] See Patterson & Joyce, supra note 25, at 781 (observing that it is improper "to resort to the market effect of an infringer's conduct . . . to determine initially whether there was copyright protection and therefore infringement"). Return to text.

[269] Transcript of Oral Argument at 43, Oasis, (No. 3-95-563) ("The contract between West and Ohio specifically states that the arrangement of the Ohio official reports shall be in the public domain. By contract, the state required West to give up the copyright and West did so."). Return to text.

[270] By eliminating the official Florida Reports in 1948, Florida did eliminate the problem of parallel citations to both the Florida Reports and the Southern Reporter. Where a state has an official reporter, such as the erstwhile Florida Reports, The Bluebook requires that documents submitted to the courts of that state contain citations to both the official reporter and the West regional reporter. See, e.g., The Bluebook: A Uniform System of Citation 202 (15th ed. 1991) ("In documents submitted to Ohio state courts, cite to Ohio St., Ohio St. 2d, Ohio St. 3d, or Ohio, if therein, and to N.E. or N.E.2d if therein."). Return to text.

[271] See FLA. CONST. art. I, 24(a); see also supra note 257. Return to text.

[272] While the Florida Supreme Court has apparently relaxed its citation requirements by only "preferr[ing]" pinpoint citation to the Southern Reporter, see FLA. R. APP. P. 9.800(n), as counsel for Oasis pointed out during oral argument, "when a court expresses to counsel a practice in the Bar before it, that . . . it would prefer something be done in a certain way, well, by golly, that is the way the lawyer is going to do it." Transcript of Oral Argument at 34, Oasis, (No. 3-95-563). Return to text.

[273] See James Love, Supreme Court Decisions in FLITE Database, Dec. 22, 1995, Internet listserv posting available at http://www.essential.org/listproc/tap-juris/0178.html (Aug. 16, 1996) (copy on file with the author). Return to text.

[274] Gary Wolf, Who Owns the Law?, WIRED, May 1994, at 98; John J. Oslund, Debate Rages Over Who Owns the Law, MINN. STAR-TRIB., Mar. 6, 1995, at A8. Return to text.

[275] Tax Analysts v. Department of Justice, 913 F. Supp. 599, 601 (D.D.C. 1996). Return to text.

[276] Id. Return to text.

[277] Wolf, supra note 274, at 100. As Gary Wolf notes, this was "a move consistent with the Reagan-era emphasis of privatization." Id.  Return to text.

[278] Id.  Return to text.

[279] Id.  Return to text.

[280] Id.  Return to text.

[281] Id. at 100-01. Return to text.

[282] 5 U.S.C. 552 (1994). Return to text.

[283] Tax Analysts v. Department of Justice, 913 F. Supp. 599, 600-01 (D.D.C. 1996). Return to text.

[284] Id. at 601. Return to text.

[285] Id. The district court found that the U.S. Supreme Court's decision in Department of Justice v. Tax Analysts, 492 U.S. 136 (1989), did not provide adequate guidance as to what constituted agency "control" of a document. 913 F. Supp. at 602. "Agency records" are documents which are (1) created or obtained by the agency, and (2) under agency control at the time of the FOIA request. 492 U.S. at 144-45. Although the Supreme Court specifically defined "control" as meaning "that the materials have come into the agency's possession in the legitimate conduct of its official duties," id. at 145, the district court de-emphasized this definition and instead insisted that possession alone does not determine control. See 913 F. Supp. at 603. The district court thus disregarded the Supreme Court's instruction to consider not possession alone, but whether the agency took possession of the materials in the "legitimate conduct" of its official duties. Return to text.

[286] See Tax Analysts, 913 F. Supp. at 605 (citing West Publishing Co. v. Mead Data Cent., Inc., 616 F. Supp. 1571, 1577 (D. Minn. 1985), aff'd, 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987)). Return to text.

[287] Id. Return to text.

[288] Id. Return to text.

[289] Id. Return to text.

[290] 499 U.S. at 353-54. Return to text.

[291] Id. at 358-59. Return to text.

[292] See 17 U.S.C. 102(b) (1994) ("In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."). Return to text.

[293] See Love, supra note 273. Return to text.

[294] Id.  Return to text.

[295] Id.  Return to text.

[296] Id.  Return to text.

[297] 44 U.S.C. 3301 (1994). Return to text.

[298] Baizer v. Department of the Air Force, 887 F. Supp 225, 229 (N.D. Cal. 1995). Return to text.

[299] Id. at 228. Return to text.

[300] Although the proposed National Information Infrastructure Copyright Protection Act now pending before Congress would prohibit such activity, see H.R. 2441, 104th Cong., 1st Sess. 2 (1995), there is nothing in the Copyright Act that prevents a WESTLAW user from systematically downloading opinions from WESTLAW, stripping out the West syllabi, headnotes, and page numbers, and creating a publicly accessible case law database. WESTLAW's subscriber agreement, however, does prohibit the practice. Nevertheless, small CD-ROM publishers have attempted to accomplish much the same thing by electronically scanning cases from West's print reporters. See West Publishing Co. v. On Point Solutions, Inc., No. 93-CV2071MHS, 1994 U.S. Dist. LEXIS 20040 (N.D. Ga. Sept. 1, 1994). Return to text.

[301] See, e.g., BellSouth Advertising & Publishing Corp. v. Donnelley Info. Publishing, Inc., 999 F.2d 1436, 1438-39, 1444 (11th Cir. 1993), cert. denied, 114 S. Ct. 943 (1994) (finding that extraction of all listings from yellow pages directory for use in competing directory was permissible); ProCD, Inc. v. Zeidenberg, 908 F. Supp. 640, 647-48 (W.D. Wis. 1996) (finding no copyright infringement where user downloaded telephone listings from publisher's CD-ROM and made listings available on Internet). Return to text.

[302] H.R. 3531, 104th Cong., 2d Sess. (1996); see also IIA Praises Introduction of Database Protection Measure, P.R. NEWSWIRE, May 30, 1996, available in LEXIS, News Library, Curnws File. Return to text.

[303] The Act uses the term "database" to mean not just electronic databases, but rather any "collection, assembly or compilation, in any form or medium now or later known or developed, of works, data or other materials, arranged in a systematic or methodical way." H.R. 3531, 104th Cong., 2d Sess. 2 (1996) (emphasis added). Return to text.

[304] Id. 3(a). Return to text.

[305] See Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 354 (1991). Return to text.

[306] H.R. 3531, 104th Cong., 2d Sess. 4(a)(1) (1996). Return to text.

[307] Id. 4(a)(2). Return to text.

[308] Id. 8(a). Return to text.

[309] H.R. 2441, 104th Cong., 1st Sess. (1995). The proposed legislation would make it a civil violation for anyone to place copyrighted material into a computer's random access memory (RAM) without permission of the copyright owner. See id. 2(a) (adding "by transmission" to copyright owner's exclusive distribution right); id. 2(a)(B)(2) (adding to definition of "transmit" additional definition that "to 'transmit' a reproduction is to distribute it by any device or process whereby a copy or phonorecord of the work is fixed beyond the place from which it was sent"). Return to text.

[310] See Tax Analysts v. Department of Justice, 913 F. Supp. 599, 601 (D.D.C. 1996). The opinions from the ten-year span during which West had been inputting data contain West's headnotes as well, which are undeniably the publisher's intellectual property. Id. Return to text.

[311] See Matthew Bender & Co., Inc. v. West Publishing Co., No. 94 Civ. 0589, 1996 U.S. Dist. LEXIS 5871 (S.D.N.Y. May 2, 1996) (denying West's motion to dismiss); Matthew Bender & Co., Inc. v. West Publishing Co., No. 94 Civ. 0589, 1995 U.S. Dist LEXIS 17688 (S.D.N.Y. Nov. 22, 1995) (granting Bender permission to file a second supplemental complaint); see also supra discussion part III.B. Return to text.

[312] Chief Justice William H. Rehnquist, Remarks at the Washington College of Law Centennial Celebration (Apr. 9, 1996). Return to text.

[313] Ironically, the Eighth Circuit completed the array of U.S. Courts of Appeals on the World Wide Web when the Washington University School of Law in St. Louis began placing Eighth Circuit decisions on-line in January 1996. See United States Court of Appeals for the Eighth Circuit, available at http://www.wulaw.wustl.edu/8th.cir/ (Aug. 16, 1996). Return to text.

[314] WIS. STATE BAR TECH'Y RESOURCE COMM., PROPOSED CITATION SYSTEM FOR WISCONSIN 11 (1994), available at http://www.law.cornell.edu/papers/wiscite/wiscite.overview.html (Aug. 16, 1996) [hereinafter WIS. CITATION REPORT]. Return to text.

[315] AMERICAN ASS'N OF L. LIBR., REPORT OF THE TASK FORCE ON CITATION FORMATS 46 (1995), available at http://lawlib.wuacc.edu/aallnet/citeform.html (Aug. 16, 1996) [hereinafter AALL CITATION REPORT]. Return to text.

[316] Id.  Return to text.

[317] Hansen, supra note 5, at 78; Tom Hamburger & Sharon Schmickle, High Stakes and Hot Competition; In Face of Change, West Publishing Fights to Maintain Its Lead in Legal Publishing, MINN. STAR-TRIB., Mar. 6, 1995, at 1A. Judge Tjoflat testified that "it's simply that we have lots to do, and we don't want to have any red tape in what we do." Hamburger & Schmickle, supra. He later clarified: "I don't want anything to be imposed on the federal judiciary that would require . . . one more whit of work." Hansen, supra note 5, at 78.

A number of commentators have remarked upon the appearance of impropriety engendered by federal judges accepting perquisites from West. West, in addition to giving federal judges personally inscribed calendars, free books, and even bound collections of a particular judge's opinions, sponsors the Edward J. Devitt Distinguished Service Award. Id. An independent panel of federal judges hands out the award, which honors a different member of the federal judiciary every year with a $15,000 cash prize and a crystal obelisk. Id. Each year, West flies members of the panel, at West's expense, to such destinations as Palm Springs, the Virgin Islands, Palm Beach, Naples, Florida, and Bel Air, California. See Hamburger & Schmickle, supra. Return to text.

[318] Hansen, supra note 5, at 78. Return to text.

[319] AALL CITATION REPORT, supra note 315, 46. Return to text.

[320] See id. 46 n.63. Return to text.

[321] Hansen, supra note 5, at 78. Return to text.

[322] Id. Return to text.

[323] See AALL CITATION REPORT, supra note 315, 47. Return to text.

[324] LA. SUP. CT. GEN. ADMIN. R. Part G, 8. Return to text.

[325] Id. In addition, instead of just the year, the citation form indicates the month and day of issue. Id. Return to text.

[326] Id. Return to text.

[327] See AALL CITATION REPORT, supra note 315, 50. Return to text.

[328] Id. 49. Return to text.

[329] Id.  Return to text.

[330] Id.   Return to text.

[331] Id.   (quoting Thorne D. Harris III, CD-ROMs-The New Basic Research Tool, LA. B.J., Dec. 1994, at 381). Return to text.

[332] The Louisiana citation form has an additional flaw as well. By using docket numbers instead of the sequential opinion numbers used by the Sixth Circuit, the Louisiana form necessitates the use of an opinion's specific date to obviate confusion with a case containing the same docket number. AALL CITATION REPORT, supra note 315, 64. The use of docket numbers possesses other disadvantages as well: (1) they have no connection with whether the case is published; (2) they do not indicate the sequence of publication; (3) they are frequently too long, creating a greater possibility of error in the citation; and (4) they frequently do not work well with many electronic case law validation and research tools. Id.  Return to text.

[333] See ABA SPECIAL COMM. ON CITATION ISSUES, REPORT TO THE HOUSE OF DELEGATES 33 (1996) [hereinafter ABA CITATION REPORT]; WIS. CITATION REPORT, supra note 314 at 21; AALL CITATION REPORT, supra note 315, 37. Return to text.

[334] Star pagination to slip opinion page numbers would require a court clerk to type in a bracketed page number at the beginning of each page of text. Return to text.

[335] AALL CITATION REPORT, supra note 315, 51. Return to text.

[336] Id.  Return to text.

[337] WIS. CITATION REPORT, supra note 314; see also Marcia J. Koslov, What is the Citation Proposal?, WIS. LAW., Feb. 1995, at 10. Return to text.

[338] See John J. Oslund, Wisconsin High Court Delays Decision on Case Citation Plan; West Publishing Opposes Proposed Change, MINN. STAR-TRIB., May 26, 1995, at 1D. The Wisconsin Supreme Court did, however, decide to begin posting all of its decisions on court BBS by September 1995. Id. Return to text.

[339] See AALL CITATION REPORT, supra note 315. Return to text.

[340] Federal Courts: Law Librarians Adopt Resolutions Calling for Alternative Legal Cites, DAILY REP. FOR EXECUTIVES, July 19, 1995, at D45. Return to text.

[341] Dana Coleman, Other States Battling Over Universal Citations, NEW JERSEY LAW., July 31, 1995, at 18. The South Dakota Supreme Court had earlier rebuffed attorneys' attempts to cite the bar association's opinions to the court, claiming that it could not find the cited opinions and reiterating that attorneys had to use West's North Western Reporter because it was the state's official reporter. Id. Return to text.

[342] See Jill Schachner Chanen, In the Matter of Cites, A.B.A. J., Feb. 1996, at 87; see also ABA Special Committee on Citation Issues, available at http://www.abanet.org/citation/ home.html (Aug. 16, 1996). Return to text.

[343] See In re Fla. R. App. P. 9.800(n), Citations, 661 So. 2d 815 (Fla. 1995). Return to text.

[344] Posting of James Evans to law-lib Internet listserv (Jan. 23, 1996) (copy on file with the author). Return to text.

[345] See ABA CITATION REPORT, supra note 333, 11. The Special Committee provided the following examples of the citation form at the federal level:

Supreme Court:1996 US 15

Court of Appeals:1996 5Cir 15

District Court: 1996 SDNY 15

Id. 40, app. A. The AALL proposes a slightly different format for federal district courts and courts of appeals:
Court of Appeals: 1996 US App (5th) 15

District Court: 1996 US NY (S Dist) 15

AMERICAN ASS'N OF L. LIBR., USER GUIDE TO THE AALL MEDIUM NEUTRAL CITATION Rule 4.2, 4.3 (Draft Release 2.2 1996). The ABA Special Committee also recommended that "all jurisdictions [should] strongly encourage parallel citation to a print source" during a transition to "primary reliance on electronic case reports." ABA CITATION REPORT, supra note 333, 38. Return to text.

[346] M.A. Stapleton, ABA Backs 'Instant' Legal Cite System, CHI. DAILY L. BULL., Aug. 6, 1996, at 1. The vote in the House of Delegates was an overwhelming 336-59. Id. Four days earlier, the ABA's Board of Governors unanimously endorsed the new citation form. M.A. Stapleton, ABA Body Backs Universal System for Legal Cites, CHI. DAILY L. BULL., Aug. 2, 1996, at 1. Return to text.

[347] See Harrington, supra note 85, at 553. Return to text.

[348] Marilyn R. Walter, Retaking Control over Teaching Research, 43 J. LEGAL EDUC. 569, 581 (1993). Return to text.

[349] Exceptions occur when students clerk for small law firms or other legal entities that do not subscribe to WESTLAW or LEXIS. See Carol L. Schlein, Selecting On-Line Research and Discussion Service for Small Firms, NEW JERSEY LAW., May 8, 1995, at 15 (noting that LEXIS and WESTLAW have historically been too expensive for lawyers in small firms). Return to text.

[350] See, e.g., THE FLORIDA STATE UNIVERSITY COLLEGE OF LAW, 1995-1996 STUDENT HANDBOOK 79 (noting that "law students have access to Internet services [and] e-mail"). Return to text.

[351] WIS. CITATION REPORT, supra note 314, at 22. Return to text.

[352] Id. at 28. Return to text.

[353] Id. at 22-23. Return to text.

[354] Id. at 23. Return to text.

[355] See, e.g., Donna M. Bergsgaard & Andrew M. Desmond, Keep Government Out of the Citation Business, JUDICATURE, Sept.-Oct. 1995, at 61; Donna M. Bergsgaard & William H. Lindberg, Case Citation Formats in the United States: Is a Radical New Approach Needed?, 23 INT'L J. LEGAL INFO. 53, 59 (1995); Berring, supra note 81, at 632. Return to text.

[356] Bergsgaard & Desmond, supra note 355, at 61. Return to text.

[357] Berring, supra note 81, at 632. Return to text.

[358] AALL CITATION REPORT, supra note 315, 59. Return to text.

[359] Id.  Return to text.

[360] Id. As the AALL report indicates, "in actual practice this is not a common oc[c]urrence and may be easily remedied by obtaining a different version of the case, from one's own office, another practitioner, a library, or the court." Id.  Return to text.

[361] Id. It is precisely this form of unreliability that, among other things, led many to view WESTLAW as inferior to LEXIS in the late 1970s. See Harrington, supra note 85, at 554. Return to text.

[362] Bergsgaard & Desmond, supra note 355, at 63-64; Bergsgaard & Lindberg, supra note 355, at 63. Return to text.

[363] Bergsgaard & Desmond, supra note 355, at 61. Return to text.

[364] Id. Return to text.

[365] It would be left to CD-ROM publishers how best to locate an opinion on disk. The easiest system would entail the use of a search engine which would allow the user to input the citation-much in the same manner as the LEXIS LEXSEE and WESTLAW Find functions-to call up the case in question.

The same case would be equally easy to find on the Internet. A Web site containing a particular court's cases would list opinions sequentially by year. A user accessing the site would simply click on the sequential opinion number to call up the opinion in question. Return to text.

[366] See discussion infra part IV.B.2. Return to text.

[367] Robert C. Berring, Universal Citation Systems-Will Tinkering with the Future Be the End of Reliable, Standardized Opinions? Yes: Keep Committees Out and Let Market Forces Work, A.B.A. J., July 1996, at 74. Professor Berring also notes that "[m]aterial [currently] is gathered, edited, cleaned up, standardized and vetted" by legal publishers. Id. Return to text.

[368] See Gary Sherman, Universal Citation Systems-Will Tinkering with the Future Be the End of Reliable, Standardized Opinions? No: Court Bulletin Boards Pose No Threat to Quality, A.B.A. J., July 1996, at 75 (observing that "judges . . . generally deny that the print publishers make significant editorial contributions to the final opinion"). Return to text.

[369] Id. Return to text.

[370] See Donna M. Bergsgaard & William H. Lindberg, A Dissenting View, in AALL CITATION REPORT, supra note 315, at 30-33 (dissenting from majority recommendation). Return to text.

[371] Id. at 31. Return to text.

[372] Id.  Return to text.

[373] AALL CITATION REPORT, supra note 315, 58. West's National Reporter Blue Book contains translation tables that convert official citations to National Reporter System citations. Id.  Return to text.

[374] Indeed, the proposed citation form by and large maintains the jurisdiction identifiers familiar to attorneys from the parentheticals of the current citation system. What is perhaps most novel about the new citation form is that it numbers cases sequentially by year and uses paragraph numbers instead of page numbers. Although the use of these two numbers might take attorneys some time to accustom themselves, it seems difficult to agree with critics who call it a "significant new learning task." See id. Return to text.

[375] Id. As Chief Judge Richard A. Posner of the Seventh Circuit says, "The problem is, us older guys are accustomed to reading on the printed page." Christine Biederman, Growing Internet Law Libraries Shake Century-Old Legal Tradition, N.Y. TIMES ON THE WEB, Feb. 16, 1996, available at http://www.nytimes.com/library/cyber/week/0216bluebook.html (Aug. 16, 1996). Return to text.

[376] The author conducted virtually all of the research for this Comment electronically and printed out those sources he chose to read. Ironically, the only instances that compelled the author to visit a law library occurred when an electronic database did not include star pagination for a particular journal. This suggests that law journals consider adopting a medium neutral citation format as well: instead of volume numbers, law journals would use the year of publication; instead of continuous pagination within a volume (which might still be retained for the sake of convenience), articles would be numbered sequentially; and instead of relying upon page numbers for pinpoint citation, paragraphs would be numbered. Return to text.

[377] See, e.g., Berring, supra note 81, at 631 ("Under no circumstances should citation requirements be changed in a way that would interfere with the natural evolution of legal information in the marketplace."). Return to text.

[378] Id. at 633. Return to text.

[379] Id. at 634. Return to text.

[380] See Bergsgaard & Desmond, supra note 355, at 66. Return to text.

[381] Berring, supra note 81, at 631. Return to text.

[382] See discussion supra part IV.B.1.b. Return to text.

[383] Biederman, supra note 375 (quoting Harvard Law Review president Dave Friedman). Return to text.

[384] Byron D. Cooper, Anglo-American Legal Citation: Historical Development and Library Implications, 75 LAW LIBR. J. 3, 3 (1982). Return to text.

[385] Paul Axel-Lute, Legal Citation Form: Theory and Practice, 75 LAW LIBR. J. 148 (1982). Return to text.

[386] Id. at 148-49. Return to text.

[387] Id. at 148. Return to text.

[388] Id. Return to text.

[389] Id. Return to text.

[390] WIS. CITATION REPORT, supra note 314, at 33. Return to text.

[391] Id. Return to text.

[392] Id. Return to text.

[393] Axel-Lute, supra note 385, at 148. Return to text.

[394] Id. at 149. Return to text.

[395] WIS. CITATION REPORT, supra note 314, at 33. Return to text.

[396] Axel-Lute, supra note 385, at 149. Return to text.

[397] Id. Return to text.

[398] Id. Return to text.

[399] See The Bluebook: A Uniform System of Citation 67 (15th ed. 1991) ("When a case is unreported and available only in separately printed slip opinions, give the docket number, the court, and the full date of the most recent major disposition of the case."). Return to text.

[400] WIS. CITATION REPORT, supra note 314, at 34. Return to text.

[401] Axel-Lute, supra note 385, at 149. Return to text.

[402] Id. Return to text.

[403] Id. Return to text.

[404] Id. Return to text.

[405] See Bluebook Editors Moving Toward Recommending Vendor-Neutral Citations, DAILY REP. FOR EXECUTIVES, Mar. 7, 1996, at A45. Return to text.

[406] Axel-Lute, supra note 385, at 149. Return to text.

[407] Id. Return to text.

[408] AALL CITATION REPORT, supra note 315, 21. Return to text.

[409] WIS. CITATION REPORT, supra note 314, at 35-36. Return to text.

[410] Id.  Return to text.

[411] Id. Return to text.

[412] Id. at 36. Return to text.

[413] Id. Return to text.

[414] See, e.g., Barbara A. Petersen & Charlie Roberts, Access to Electronic Public Records, 22 FLA. ST. U. L. REV. 443, 499 (1994) (discussing Florida legislation that requires record custodians to provide copies of public records in the medium requested if the record is maintained in that medium); Matthew D. Bunker et al., Access to Government-Held Information in the Computer Age: Applying Legal Doctrine to Emerging Technology, 20 FLA. ST. U. L. REV. 543, 557-59 (1993) (discussing guidelines to ensure access to computerized records in Florida). Return to text.

[415] See FLA. STAT. ch. 119 (1995). Return to text.

[416] FLA. CONST. art. I, 24(a). Return to text.

[417] FLA. R. APP. P. 9.800(a)-(b), (n). Return to text.

[418] See supra text accompanying note 246. Return to text.

[419] Interview with Jo Dowling, Ass't Librarian, Supreme Court of Florida, in Tallahassee, Fla. (Apr. 2, 1996). Return to text.

[420] Id. Return to text.

[421] Id. Return to text.

[422] Id. Return to text.

[423] FLA. STAT. 25.381 (1995). Return to text.

[424] The Florida Supreme Court has admitted as much. See SUPREME COURT MANUAL, 4, at 700 ("Publishers other than the Court's official reporter . . . ."); see also supra text accompanying note 250. Return to text.

[425] Oasis Publishing Co., Inc. v. West Publishing Co., 924 F. Supp. 918, 930 (D. Minn. 1996). Return to text.

[426] See West Publishing Co. v. On Point Solutions, Inc., No. 93-CV-2071-MHS, 1994 U.S. Dist. LEXIS 20040 (N.D. Ga. Sept. 1, 1994); see also discussion supra part III.B. Return to text.

[427] FLA. CONST. art. I, 24(d) provides:

All laws that are in effect on July 1, 1993 that limit public access to records or meetings shall remain in force, and such laws apply to records of the legislative and judicial branches, until they are repealed. Rules of court that are in effect on the date of adoption of this section that limit access to records shall remain in effect until they are repealed. Return to text.

[428] FLA. STAT. 25.381 (1995). Return to text.

[429] FLA. R. APP. P. 9.800(a)-(b), (n). Return to text.

[430] In re Fla. R. App. P. 9.800(n), Citations, 661 So. 2d 815, 816 (Fla. 1995): "[P]inpoint citation to . . . the Southern Reporter . . . is optional, although preferred." As noted earlier, few attorneys practicing before the Florida Supreme Court would venture to disregard its "preferences." See supra note 272. Return to text.

[431] Interview with Janie Bentley, Deputy Clerk, Supreme Court of Florida, in Tallahassee, Fla. (Apr. 2, 1996). Return to text.

[432] Id. Return to text.

[433] Id. Return to text.

[434] Id. Return to text.

[435] Id. Return to text.

[436] Id. Return to text.

[437] Id. Return to text.

[438] AALL CITATION REPORT, supra note 315, 72. Return to text.

[439] WIS. CITATION REPORT, supra note 314, at 28. Return to text.

[440] Id. at 30; AALL CITATION REPORT, supra note 315, 67. Return to text.

[441] WIS. CITATION REPORT, supra note 314, at 28; AALL CITATION REPORT, supra note 315, 67. A footnote would be considered a part of the paragraph in which it appears, while an indented quotation would be considered a part of the paragraph immediately preceding it. WIS. CITATION REPORT, supra note 314, at 28. Return to text.

[442] Bentley, supra note 431. Return to text.

[443] See Supreme Court of Florida Opinions, available at http://nersp.nerdc.ufl.edu/~lawinfo/flsupct/index.html (Aug. 16, 1996). Return to text.

[444] See id. Return to text.

[445] Ftp allows a user "to list the names of computer files available on a remote computer, and to transfer one or more of those files to an individual's local computer." American Civil Liberties Union v. Reno, 929 F. Supp. 824, 835 (E.D. Pa. 1996). Return to text.

[446] See Robert J. Ambrogi, Finding Court Decisions on the Internet, RES GESTAE, June 1995, at 44. Return to text.

[447] Id. Return to text.

[448] This is hardly a significant investment in financial terms. The average Florida Supreme Court opinion for the month of February 1996 was approximately nine kilobytes in length. See Index of /~lawinfo/flsupct/cases/feb96, available at http://nersp.nerdc.ufl.edu/~lawinfo/flsupct/cases/feb96/ (Aug. 16, 1996). Assuming a caseload of no more than 500 cases per year, see supra note 437 and accompanying text, a year's worth of Florida Supreme Court opinions would take up 4.5 megabytes of space. A moderately well-equipped personal computer costs approximately $2,000 today and contains over one gigabyte-a thousand megabytes-of storage space. See Elisa Williams, It's Time to Buy a Computer, ORANGE COUNTY REGISTER, May 5, 1996, at K7. Thus, an average personal computer contains enough space for 222 years of Florida Supreme Court opinions.

The biggest investment would be in providing a system with wide bandwidth Internet access to meet the demands of users. The purchase of server hardware, software, and a direct connection to the Internet runs "anywhere from $10,000 to $35,000 and up, depending on the power of the computer system and the speed of the connection." Eric Richardson, Site Construction, INTERNET WORLD, Apr. 1996, at 62, 64. The cost of a 1.54 megabyte-per-second T1 connection ranges from $1,300 to $2,000 a month. Id. at 66. Thus, after the initial investment in setting up the ftp server, the yearly cost (excluding that of an individual to oversee the system) would be between $15,600 and $24,000-insignificant in terms of state budgetary appropriations. Return to text.

[449] These users would presumably also be aware of conveniently designed Web sites or CD-ROMs containing copies of all opinions in the archive.

CD-ROM users, who now generally have to wait for periodic updates to their collections of case law on CD-ROM, will quite likely be able to instantly update their CD-ROM case law libraries via supplements on the World Wide Web. See Robert E. Calem, Hybrid CD-ROMs Send Users to the Web, N.Y. TIMES ON THE WEB, Apr. 18, 1996, available at http://www.nytimes.com/library/cyber/week/0419interactive.html (Aug. 16, 1996); Robert E. Calem, CD-ROM Publishers Seek Salvation in On-Line Links, N.Y. TIMES ON THE WEB, Apr. 17, 1996, available at http://www.nytimes.com/library/cyber/week/0418interactive.html (Aug. 16, 1996). Return to text.

[450] KAFKA, supra note 1, at 213. Return to text.

[451] The judiciary is the third branch of the government, and "governments have a duty to disseminate government information to their citizens." AALL CITATION REPORT, supra note 315, 14. Return to text.