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Microsoft, DRM, David Boies, and the US Constitution
Wednesday, July 07 2004 @ 02:22 AM EDT

Well, fans of DRM, you can now buy, for $2.99, Microsoft's proprietary version of the US Constitution for your PocketPCs. The download page says you can't print it. Further down, it says you can make two copies a year. LWN has the story. [sub req] Larry Lessig's blog reported it last month.

Or, you can get the US Constitution for free online, thanks to the FOSS community, who made the Internet for you. Larry Lessig points you to a free version for the iPod. They do ask for your email, so spam may be expected. And I don't think it's necessary to get a special iPod version, because iPods can read any text file. You can also get it from Project Gutenberg in plain text, or formatted for your PocketPC or your Palm. If you need a different format, try PG's file recode service. I can't resist pointing out that Project Gutenberg is also hosted by ibiblio.

What do you get for your money?

"This is the complete Constitution of the United States, The Bill of Rights, and the rest of the 27 ammendments [sic], all in easy to read format. This document is printable in Adobe Reader. Please Note: This book is easy to read in true text, not scanned images that can sometimes be difficult to decipher. The Microsoft eBook has a contents page linked to the chapter headings for easy navigation. The Adobe eBook has bookmarks at chapter headings and is printable up to two full copies per year. Both versions are text searchable."

It's for sale on Amazon, where one reader points out that at that rate, it would take 7 years to reach all the colonies. Of course, that'd be one copy per colony, so all the folks in each colony would have to share the one copy. Oh, my. Sharing.

Of course, it's ridiculous and it reminds me of the flap about Alice in Wonderland a while back, which had a note that you couldn't print it or lend it or give it to anyone or read it aloud. Adobe quickly clarified that they meant the computer couldn't read it. You moms and dads could.

What about laws? Can they ever be copyrighted and made proprietary? Yes, and no.

"Both Westlaw and Lexis fold copyright materials into larger databases that are devoted to patent and trademark law," it says on Georgetown University's page about researching copyright law. Here's Westlaw's copyright notice on a popup page from the copyright link at the bottom of the page:

"Copyright (c) 2004 by West. Copyright is not claimed as to any part of the original work prepared by a U.S. government officer or employee as part of that person's official duties. All Rights Reserved. Except for the licenses granted herein, all right, title and interest in The West Education Network and lawschool.westlaw.com and The West Education Network DATA (including all copyrights therein) and lawschool.westlaw.com DATA (including all copyrights therein) are and shall continue to be the exclusive property of West, Dow Jones or other licensors or contributors."

Lexis puts it more threateningly:

"Materials available in this Web site are protected by copyright law. Copyright © 2004 the LexisNexis Group of companies. . . . .No part of the materials including graphics or logos, available in this Web site may be copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, without specific permission (to request permission to use materials, continue to our Permission Request Form). Distribution for commercial purposes is prohibited."

Their detailed popup page says a bit more. You can't show any of their materials to more than one person at a time, for example. How they police that is a mystery:

"STATEMENT REGARDING COPYING, DOWNLOADING AND DISTRIBUTION OF MATERIALS FROM THE LEXISNEXIS™ SERVICES

"LexisNexis, a division of Reed Elsevier Inc. ('LN') receives many questions concerning what copying, downloading and distribution of materials available in the LexisNexis services (the 'Online Services') is permitted by our subscription agreement. Some of the most common questions are addressed below.

"Photocopying

"A subscriber may photocopy LexisNexis printouts and distribute those copies to the extent permitted under the "fair use" provisions of the Copyright Act of 1976 (17 U.S.C. §107).

"Downloading

"With respect to court cases, court rules, court briefs, agency-issued documents, agency regulations or executive branch materials from the United States, its states or territories ('Authorized Legal Materials'), individuals may retrieve, via downloading commands of the Online Services, and store in machine-readable form, primarily for one person’s exclusive use, a single copy of insubstantial portions of Authorized Legal Materials included in any individual file to the extent such storage is not further limited or prohibited by the Supplemental Terms for Specific Materials.

"With respect to United States patents ('Authorized Patent Materials'), individuals may retrieve, via downloading commands of the Online Services, and store in machine-readable form, primarily for one person’s exclusive use, a single copy of no more than 200 patents at any one time.

"With respect to all other materials other than Authorized Legal Materials and Authorized Patent Materials, individuals may retrieve, via downloading commands of the Online Services, and store in machine-readable form for no more than ninety (90) days, primarily for one person’s exclusive use, a single copy of insubstantial portions of materials included in any individual file to the extent the storage of such materials is not further limited or prohibited by the Supplemental Terms for Specific Materials.

"Downloaded materials may be printed out, copied, and distributed to the extent permitted by applicable copyright law and not further limited or prohibited by the Supplemental Terms for specific materials, but may not otherwise be reproduced or distributed. Materials downloaded and stored in machine-readable form may not be displayed electronically to more than one user at a time.

"'Fair Use'

"The "fair use" provisions of the Copyright Act provide that several factors must be considered when determining whether the use made of a work in any particular case is a "fair use". These factors include whether the use is of a commercial or non-profit nature, the amount and substantiality of the portion used in relation to the work as a whole, and the effect of the use upon the potential market for or value of the work.

"Whether a particular use is permitted under the "fair use" provisions of copyright law depends on the facts and circumstances of the particular use. An evaluation of these facts and circumstances, the factors referred to above and court cases interpreting applicable copyright laws may all be necessary to determine whether the reproduction or distribution of materials published in printed form (books, magazines, newspapers, newsletters, etc.) is permissible.

"LN will not give legal advice to subscribers as to whether a particular type of use constitutes 'fair use'."

Now you know, having read the above, why I never link to Westlaw or LexisNexis and link only to cases that are freely available. Westlaw lets law students have access to their service, but they limit how many cases a student may print a year.

How can they do this, you are asking? Aren't the laws public domain? The laws are, but that's not all you get from Lexis or Westlaw. Then there is the issue of their terms and conditions, which you must agree to or you can't access the site.

Naturally, there has been a case about this, actually two, but with just one company, Jurisline, losing both. David Boies was the attorney for Jurisline, along with Robert Silver, now on the SCO case also, which unsuccessfully argued that copyright law trumped state laws regarding contracts. Small world, isn't it?

Jurisline set up a web site, offering free cases. The site had advertising. Jurisline used both Lexis and West Publishing materials to develop the site, claiming under copyright law it had the right. Here's what it offered in 2000:

"Jurisline.com has created a stunning new Web-based resource for legal research. The service is in final public beta testing now, but already provides a single integrated and intuitive search engine interface to an impressive array of legal data. It is well on its way to providing comprehensive federal and state case law, and it has made a start on statutory law."

Sounds fabulous, doesn't it? Just the thing the world needs. "Jurisline is the first company to provide free access to a fully searchable and comprehensive database of public domain legal research materials," said Ken Chow, a partner with Jurisline. "Previously, these materials have been available only through subscriptions to costly services, preventing most people from having any access to online legal research."

Of course, Lexis didn't agree this was so wonderful. It was Jurisline that sued Lexis, not the other way around, seeking a declaratory judgment that "Reed Elsevier's 'Lexis' divisions do not hold any protectible copyright in the official text of the judicial opinions and statutes contained on Lexis's Law on Disc™ products, and that federal copyright law preempts certain provisions of Lexis's license agreements purporting to restrict Jurisline's ability to publish these public domain materials." They put out a press release saying that the suit was to "establish rights to public domain material".

Here is a bit more on their theory of the case:

"Jurisline.com is adding coverage and backfiles of state and federal court opinions at a rapid pace. Where do they get the data? In part from the Lexis Law On Disc CD-ROMs. Jurisline.com used the core text from the LEXIS CD-ROMs after removing all editorial enhancements made by LEXIS, other than de minimus and non-creative enhancements such as attorney and date information. Lee Eichen and Kendrick Chow both openly acknowledged that to me, and the company also acknowledges this in a lawsuit it has filed against Reed Elsevier, Inc. (http://www.reed-elsevier.com) on December 8, 1999."

In the lawsuit, Jurisline claimed that the core data it used was in the public domain and had been created by the government, paid for by taxes. It asked the court to find that there was no protectible copyright. It also claimed that Lexis and West had used monopoly power to artificially restrict supply in that market and that Lexis had artificially jacked up the prices. Jurisline claimed that its use of the data was proper under federal copyright law, which it said preempted the state law of licenses prohibiting their use of the data.

Jurisline no doubt thought they had a shot because of another case, Matthew Bender and Hyperlaw v. Westlaw [S.D.N.Y., May 19, 1997]. That case said that once something is in the public domain, it's always in the public domain, and that you can't copyright facts:

"This action raises the question of the extent of the copyright protection available to West Publishing Company with respect to the opinions of the United States Supreme Court and the Circuit Courts of Appeals that it publishes in the Supreme Court Reporter and the Federal Reporter Series.

"There is no question that West invests substantial time in reviewing each opinion, checking the citations, adding parallel citations, modifying the caption to conform to its style and adding information concerning the attorneys involved and subsequent history of the case. The issue presented here is whether the changes West makes to an opinion, either singly or in combination, represent a sufficient creative effort to warrant copyright protection.

"BACKGROUND

"In this case the plaintiff, HyperLaw, Inc., is the publisher of CD?ROM products, one of which contains recent Supreme Court cases, and the other, recent Circuit Court of Appeals cases. Although HyperLaw obtains the text of most of the current cases from sources other than West, in a small percentage of cases it scans the title, texts and certain other information directly from the West reports. It does not, however, scan the headnotes that West adds to its reports or the key numbers it inserts in the opinions.

"In addition, HyperLaw intends to expand its products so that a user reviewing an opinion can see the full text of any case cited in the opinion by simply clicking on the citation. Since many of the cited cases are from before 1990 when HyperLaw began collecting the cases, it intends to scan these cases into its product directly from the West Reporters. Alan Sugarman, HyperLaw's President, admitted that this process of obtaining cited cases might ultimately result in HyperLaw scanning up to 75% of West cases into its system . . .

"Section 403 clearly reflects a judgment by Congress that those who publish material that basically comes from government sources should not be able to appropriate that material for themselves simply by incorporating additional material into the text without giving adequate notice to the public of that portion of the document that contains material protected by the publishers' copyright. Thus, in doing a fair use analysis with respect to any reprint of an opinion published by West, it would be reasonable to weigh against West the fact that it does nothing to indicate to the public which portions of the reprinted opinions contain new matter added by West as to which they claim a copyright.

"CONCLUSION

"Since West has no copyright interest in those elements of the reported opinions which HyperLaw is copying and intends to copy, HyperLaw is entitled to a judgment that its copying on the opinions from the West reports does not violate West's copyrights."

So, Jurisline probably thought this case would be their umbrella. But something went terribly wrong. Matthew Bender sued Jurisline in return, naturally. They cleverly sued for fraudulent representations, alleging that one of the principals at Jurisline made misrepresentations to access their database. He had agreed to their terms and said he was a sole practitioner, who wouldn't share the data on a network or with other attorneys, etc. Read the above terms and you'll see that they had him good. It wasn't the use of public domain materials, or even copyright issues that killed the Jurisline case. It was the EULA.

Eventually, Jurisline caved, after the federal court ruled that Matthew Bender's state law contracts claims were not preempted by the US Copyright Act, so they ended up stipulating to a dismissal of all their claims in federal court and to a judgment for Bender in state court:

"Jurisline acknowledged the validity and enforceability of Matthew Bender’s license, agreed to removal of all data derived from the Lexis Law on Disc™ CD-ROMs from its system, agreed to return the CD-ROMs and all copies to Matthew Bender, and agreed not to deliver any of the LEXIS data to anyone."

There is a detailed explanation of copyright preemption on that page, which you might find of interest, since it was at issue in the SCO-Novell case and it was raised by SCO regarding the GPL in the IBM case too. Here's what the federal court did to defeated Jurisline:

"The federal court dismissed all of Jurisline.com's claims on June 19, 2000. The federal court's judgment included the decisive ruling that Matthew Bender's state law claims were not preempted by the federal law of copyright. Following that ruling, final judgment was entered against Jurisline.com and Lee Eichen in state court, with their consent.

"The judgment in state court:

  • declares that the license agreements under which Reed Elsevier Inc. and Matthew Bender license case law and statutory materials are valid and enforceable.

  • directs Jurisline.com to delete from its web site and storage media all the material that they obtained under license from Matthew Bender and its predecessor, and requires Jurisline.com to cease and desist from providing to any third parties the content licensed from Matthew Bender and Reed Elsevier Inc.

  • compels Jurisline.com to return to Matthew Bender all of the licensed CD-ROMs and copies of them in its possession.

  • prohibits Jurisline.com from using the LEXIS databases except as may be authorized in writing by either Matthew Bender or Reed Elsevier Inc.

  • requires the immediate transfer by Jurisline.com to Reed Elsevier Inc. of 48 domain names."

In short, it was a debacle, or as Matthew Bender's attorney put it, the rulings "terminate the litigation very successfully for our clients." That's how lawyers talk when they are gloating.

Jurisline wasn't alone in viewing Lexis and Westlaw's terms and conditions as a "copyright by contract" scheme. And the case doesn't mean no one can put together a database of case law, because some do, but it does mean you have to either pay somebody for the data, the older cases that aren't online for free, or collect it yourself the old-fashioned way. And don't click "I agree" to anything you don't mean to live by.

What does all this have to do with Microsoft and the US Constitution? Just that you probably shouldn't assume that you can ignore the restrictions, even if the US Constitution is in the public domain. I don't know what copyrightable elements there could be in there, but it sounds like there might be some, from the description. But the real danger is that once you click, I agree, you are probably doomed. Companies have been systematically working to set up the laws and the tech to make sure you can't do anything without serious, mind-boggling risks. Microsoft or Adobe probably won't be suing anybody over printing three copies of the US Constitution, but this whole DRM thing isn't being set up just as a proof of concept. They mean to use it. Just one more reason to switch to FOSS at your earliest opportunity, where you don't have to wonder if you'll become a felon if you print a copy of the US Constitution.

Of course this story also tells us that just because Boies Schiller represents a company, it doesn't mean they will win.


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