Farewell to GPO Access

On Friday, March 16, 2012 GPO Access passed away, off to meet its maker in whatever spot in Internet Heaven that is reserved for federal government websites.

GPO Access was born on June 8, 1993 when President Clinton signed Public Law 103-40, the “Government Printing Office Electronic Information Access Enhancement Act of 1993” and went live on June 8, 1993. GPO Access’ mission was to maintain a directory of electronic information, provide online access to the Congressional Record, the Federal Register and other publications, and operate an electronic storage facility for electronic government information. GPO Access completed its mission gloriously and can now rest.

GPO Access was the gateway to federal information in electronic format, and often time that format was PDF. While we take it for granted now, GPO Access used to charge subscription fees! The fees were eliminated on December 1, 1995 and usage shot up. At the time of the 1997 biennial report searches were up 1187% and retrievals were up 319% from the time when fees were charged.

What got the most use? The Federal Register and the Code of Federal Regulations. What got the least use? I would guess the material on Congressional rules and procedures. Using the Congressional rules and procedures material is, however, the basis for my fondest memory of GPO Access. I found out about this material through a political science course that I took. This material, consisting of the rules of the House and the Senate along with procedural precedents for both chambers is amazing and unappreciated material and lead me to write my first published article. I may be the only person who appreciated GPO Access. I thank you.

GPO’s new Federal Digital System (FDSys) seems ready, willing, and able to fill the online shoes that GPO Access leaves behind. Best of luck to you FDsys; researchers looking for reliable and free government information are relying on you. GPO Access will probably soon be interred in the CyberCemetary

In lieu of flowers, donations can be made through the Internal Revenue Service on or before April 17, 2012.

OpenCourt Project

OpenCourt is a pilot project that broadcasts the proceedings of the Quincy District Court in Massachusetts via the internet. The project is run by WBUR, Boston’s NPR news station, in cooperation with the Quincy District Court and the Supreme Judicial Court of Massachusetts. Video can be streamed live or accessed through the daily archive. The goals of the project are to increase public awareness of how the courts function and to serve as an example to courts around the country who may want to adopt this technology. The Quincy District Court, one of the busiest courtrooms in the state, handles both criminal and civil cases.

More information about OpenCourt can be found on the project’s FAQ page. To view the proceedings, go to the OpenCourt Live page or view the Livestream Schedule.

PubMed

For those of you researching in the area of health law, it is often necessary to search in medical literature for information related to your topic. One great source to consult for this is PubMed. PubMed is a free resource from the National Center for Biotechnology Information and the National Library of Medicine that contains over 21 million citations to journal articles and books related to medicine, health care, and similar topics. In some instances, PubMed may also provide a link to the full-text of an article. Citations in PubMed generally span from 1946 to the present.

Each article in the database is assigned Medical Subject Headings (MeSH) such as “health care reform” or “genetic testing” depending on the topics covered in the article. These MeSH terms can be used to search for highly relevant articles on your specific topic. For more information about how to conduct searches in PubMed, including subject searches using the MeSH terms, see the PubMed Online Training website. More information about PubMed can also be found in the PubMed Fact Sheet.

There's a GAO App for That

The Government Accountability Office (GAO), formerly known as the General Accounting Office, is the independent, nonpartisan congressional agency that under the authority of the Comptroller General is charged with auditing agencies to ensure public funds are spent properly and investigating illegal or improper activity by the agencies. According to a recent press release, the agency has now released an app for the iPhone and iPad that will provide access to the GAO reports and congressional testimony along with videos and podcasts. A similar Android app is expected to be launched in a few months.

Tax Amnesties

The law library has recently acquired Tax Amnesties published by Wolters Kluwer Law & Business deals with an emerging topic in the international taxation field. Tax amnesty is granted by countries to lift the tax liability on individuals in exchange for the disclosure of the offender's hidden assets whether it be in the form of real property, bank accounts, or investments in foreign corporations, and pay the tax owed. The conditions and benefits vary ranging from allowing the taxpayer to avoid criminal prosecution to lifting penalties or lowering the tax liability.

Tax Amnesties looks at this issue from an international standpoint investigating what tax amnesty entails. First, it begins with the collapse of secrecy by the banks that historically allowed taxpayers to hide assets from their home countries and then provides a thorough survey of approaches taken by select nations throughout the globe. The legal impact of tax amnesties and their compatibility with international agreements are also discussed as well as an evaluation of such amnesties altogether. The appendices contain amnesty tax laws for thirteen select nations. This title is located on the news titles shelf across from the circulation desk in the law library.

Legal Oxymoron of the Week for March 3d, 2012

This week's Legal Oxymoron of the Week is:

Intellectual Property

See, e.g., John Lienhard, Reflections on Information, Biology, and Community, 32 HOUS. L. REV. 303, 314(1995).

Copyrightability of Briefs Filed in Court: Fair Use?

Recently, as many other blogs have reported, two attorneys have filed suit in the Southern District of New York against West and LexisNexis arguing that their [Wexis's] distribution of briefs filed in court [and acquired by Wexis with the courts' complicity] constitutes copyright infringement.

I believe the stronger argument against a finding of infringement is that, once filed, such documents do not just become "publicly available", as Eugene Volokh argues, but they become a part of the public record, and, as such, lose any copyright that may have attached when the document was first created. However, I am not a copyright expert, so let's examine the argument that seems to be getting the majority of play: that (somehow) such use of the otherwise-copyrighted briefs constitutes "fair use".

Fair Use

"Fair use" is an affirmative defense against the charge of copyright infringement, and is covered by 17 U.S.C. § 107 (2006). As the text of that statute states, there are two tests that the particular "use" must go through to determine whether such use was "fair".

The First Test in Fair Use Analysis

The first test, spelled out in the main text of the statute, is that the court must examine whether the use was "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. . . ." If the use falls into one of those categories, then the court can proceed to examine whether such use was "fair"; however, if the "use" is not on the list, then the "fair use" defense should not be available to that defendant. Clearly, the "use" of the documents at issue by Wexis is "to make money", a completely commercial use that is not on the list.

The fact that the briefs made available by Wexis CAN be used for criticism, comment, news reporting, teaching, scholarship, or research does not resolve the issue for two reasons. First, those uses are what the customers of Wexis are engaging in, not Wexis (and, furthermore, Wexis customers are not the defendants in this case). Secondly, considering that neither West nor LexisNexis (through their respective products) restrict access to their briefs databases to just news agencies and educational institutions, the fact that the briefs CAN be used for those purposes is not dispositive. The briefs can just as easily be (and probably are) used as templates, as shortcuts for other attorneys to rely on in drafting their own briefs, and possibly even for wholesale copying of particularly effective language.

The Second Test

Even if the court were to somehow impute the uses of the Wexis customers onto the Wexis defendants themselves and allow them to pass the first step in the fair use analysis, the court would then need to examine the four factors listed in the statute:
"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
"(2) the nature of the copyrighted work;
"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
"(4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107 (2006).

Wexis would clearly lose factor 1 (the purpose and character being of a completely commercial, for-profit, nature) and factor 3 (considering Wexis provides the complete (i.e., 100%) brief). Depending on how the court interprets factor 4, Wexis could get crushed by it as well due to their own actions: If there is no potential market for or value of these briefs, then why do they go through the trouble of acquiring them, and why do they charge so much for those databases?

Factor 2 is the only place Wexis can win (if they get that far). But to do that, they have to argue that the briefs, once filed, become a part of the public record and, as such, lose their copyrights.

Wait a minute . . . Isn't that where we began?