ARCHIVED: Libraries and Interactive Services on the Information Highway: Toll Roads, Freeways, Highway Robbery

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Cover Letter

San Diego County Law Library
1105 Front Street
San Diego, California 92101-3999
(619) 531-3904
TELEFAX: (619) 238-7716


Charles R. Dyer
Judge Terry B. O'Rourke, PresidentLibrary Director Judge Robert C. Baxley
Judge Victor Bianchini
Judge Patricia Yim Cowett
James D. Crosby, Esq.
Stephen F. Lambert, Esq.
Judge Thomas R. Mitchell

August 29, 1996

United State National Commission on Libraries and Information Science
c/o Peter Young
1110 Vermont Avenue, N.W.
Suite 820
Washington, DC 20005-3522

BY FAX and mail., FAX: (202) 606-9203, Confirm: (202) 606-9200

Dear Mr. Young:

As promised to you in my letter of June 10, 1996, attached is written testimony that I wish to submit before the Commission as part of its Hearing on Libraries and Information Services on the Information Highway held in San Diego on July 22. In order to get it to you on time, I am faxing it, but I am having it sent by mail, including a diskette in WordPerfect 5.1/5.2, which may help your compilation.

Please call if there is any problem. Either my Executive Assistant Tracy Lanagan or I will see that you get what you need. Thank you.

Sincerely yours,

Charles R. Dyer

P.S. My letter of June 10 referred to my contact with Mary Alice Baish, Assistant Legislative Representative for the American Association of Law Libraries. While I did receive some good advice from her before preparing my testimony, because of schedule difficulties, neither she nor anyone else from AALL reviewed it before submitting it to you. All my remarks, for better or worse, are my own.

Testimony before the
United States National Commission on
Libraries and Information Science

Hearing on
Libraries and Interactive Services on the Information Highway:
Toll Roads, Freeways, Highway Robbery

Monday 22 July 1996, San Diego, California

Written Testimony Submitted for the Record
by Charles R. Dyer, Director of Libraries San Diego County Law Library

August 28, 1996

Thank you for you kind invitation to testify at the hearing and for allowing me the opportunity to submit written testimony. I was unable to attend the hearing itself because I was already committed to make a presentation and other work at the annual meeting of the American Association of Law Libraries held in Indianapolis the day of the hearing. My computer network administrator attended your hearing and reported to me.

I have been Director of Libraries at the San Diego County Law Library for nine years. Prior to that, I was the Law Librarian and an Associate Professor of Law at the University of Missouri-Kansas City for ten years. I testify from substantial personal experience. The opinions expressed here are only my own, however, and they have not been reviewed by the Board of Trustees of the San Diego County Law Library. I also have been in contact with the American Association of Law Libraries and have taken materials supplied by the Association into account, but my testimony has not been reviewed by AALL, and I am sure that the Association would not want to make all the statements I make here, at least not publicly.

Just as other librarians reported to you at the hearing, the San Diego County Law Library has been hard hit with the financial cost of gearing up for interactive services while trying to maintain present services in a climate of less funding for government that is rampant throughout the nation and especially in California. Rather than add to that considerable body of testimony, I would prefer to concentrate on the issues specifically relevant to a county law library.

County law libraries in California are open to the public, as well as the legal community. In the past few years, the use of the San Diego County Law Library by citizens representing themselves in court or other legal matters has increased dramatically while the use by attorneys and other members of the legal community has declined. Now, of the over 250,000 visitors to the San Diego County Law Library each year, over 40 percent of those coming to our Main Library and over 60 percent of those coming to our three branches are regular citizens representing themselves.

These statistics represent two demographic changes in the practice of law: First, many lawyers, including solo practitioners, are beginning to find legal materials online, through both Lexis and Westlaw and the Internet. Second, and more interesting, the numbers of litigants representing themselves in court has increased almost exponentially. (These litigants are known as pro se litigants nationally, and pro per litigants in California.)

In San Diego County, in 72 percent of the divorce cases, both sides are representing themselves. Similar increases are occurring in such areas as landlord-tenant, adoption, immigration, name changes, bankruptcy, auto accident law, and worker's compensation. Many of these new pro se litigants represent themselves either because the cost of legal representation is too high for the claim involved or because they do not trust lawyers. Most pro se litigants are not very knowledgeable about interactive and online information services, and few would care to pay the price of those that charge.

Presently, online information services, and the CD-ROMs produced by the same companies and other legal publishers, are geared toward the practicing bar, with little thought given to serving the public at large directly through public law libraries such as the San Diego County Law Library. Lexis and Westlaw set up accounts by "attorney" or some other presumed-permanent person at the receiving end. CD-ROMs are used best at standalone personal computers, or at least in environments wherein all the users can survive a lengthy training session. Searching the data online or on CD-ROM involves the end user much more intensively than books do*so much that most all pro se litigants need a librarian's help through most of the search effort.

Yet, with all that, most legal publishers, including the U.S. Government, see electronic publishing as the future for legal publications. Theoretically, this makes sense, since individual statutes and court opinions, as small-sized pieces of information, are more easily organized, published, and read in electronic form. They come out, ready for publication, almost every day of the year, rather than in one lump, like a book. Statutes and court opinions are too numerous to browse, even when arranged by subject, so there is no value to the user in the serendipity of location on open shelf, as would exist in other areas of literature. As for secondary sources on law, the ability to browse within the work is often seen as an advantage of the book form*especially for the novice or even the attorney who is uninformed about that area of law.

Our problem at the San Diego County Law Library is that we often have peak crowds of over 250 at our Main Library and over 100 at our branches. If we had enough terminals to serve these peaks, we still would not have the network capable of serving all their needs simultaneously, not to mention the huge cadre of reference librarians willing to spend up the thirty minutes per user per search. (Networked CD-ROMs, with their slow speeds and restrictions on number of simultaneous users, are practically useless as replacements for our standard hardcopy sets.)

We at the San Diego County Law Library see a possibility that the Internet might theoretically be able to supply our primary legal literature (statutes, court opinions, administrative regulations), were we to get enough terminals and provider access. But, of course, this possibility exists only when the governmental authorities that produce this documentation are willing to put complete materials online with adequate trunk phone lines to make their availability possible to public law libraries across the country. Such an occurrence would drive the commercial vendors (Lexis and Westlaw) into a very small market share and would likely not occur without significant legislative initiative in all fifty states, the District, and the federal government. Need I say that the lobbying against such efforts would be great indeed.

Nevertheless, were the day to arrive when the San Diego County law Library could serve its customers through mostly electronic means, then our role would be the same as it is today in theory, but done differently. We would provide the initial gathering of good materials into a properly searchable library, this time on a web site. (This is selection in advance.) Ninety-five percent of our library's web page would have the same links as those of a county law library on the other side of the continent, but our local materials would rank higher on our tree, and our in-house materials would be available only through us (although those materials could be linked by others' web pages). We would then provide the on-call reference through e-mail, interactive telephone and interactive television. (This is selection on demand.) We would provide additional access services, such as our online catalog and couriered or mailed books, to our hardcopy materials. When such a day comes, I still see the San Diego County Law Library spending 65 percent of its budget on personnel, but the book budget would be small and the computer/telecommunications budget would be larger.

Our job today is to re-position ourselves to meet this new day, while still getting our citizens the materials they need today, because their day in court cannot wait for the Internet to live up to this dream.

In the meantime, legal publishers plague us with copyright-like issues. While personally I believe CD-ROM to be the 8-track of the 90's, publishers insist on making that technology the answer. It's not just that they are slow, that they all have serious installation problems, that they use obtuse search software, and that they require expensive hardware to run. It is a very bad answer because publishers limit use of their CD-ROMs in more ways than they ever limited the use of books. We could always mail our book through interlibrary loan, but we cannot use a CD-ROM over a WAN. We could have several people using a multi-volume treatise at once, but we need a special license, called a multi-user license, at additional cost, to do the same with a CD-ROM. I will be glad when the stupidity of CD-ROM is realized, and we all just go with online and Internet services.

With regard to true copyright, both CD-ROM and online services create problems that are hard for libraries to police, but only in terms of quantity. We were always susceptible to the library user who would photocopy a whole book himself. (Now, with sufficient hard disk space, they can scan them into their home PC's.) But electronic information downloads fast and painless.

If governments do their own job of disseminating their information, as I suggested above, then primary law materials will not have a copyright issue. With regard to secondary materials, publishers will just have to make single-use commercial fees over the Internet cheap enough so that ordinary citizens can survive them. Those who try to make too much money, such as Thomson, will lose the low-end of the market*i.e., the pro se litigants*to those who are more reasonable, like Nolo Press. Eventually, I suspect that legal writers will publish on the Internet directly by using the simple gimmick of allowing use of older versions of their books, but requiring small payments for the recent updates (the online pocket parts, if you will).

In the interim, we have some unique copyright issues because much of legal publishing is generated by governments. West Publishing (now part of Thomson) has been desperately trying to hold onto business by declaring that their page numbers are copyrighted. While creating considerable consternation among other legal publishers and law librarians, this act has had the effect of pressuring courts to choose vendor-neutral citation systems*probably something they should have done a hundred years ago. On the other hand, many administrative agencies and local governments have been giving exclusive contracts to certain publishers for their regulations and ordinances, with the result that their publications increase in price significantly.

In both instances, I will be glad when these public-supported courts and agencies finally decide that their information is really our (the public's) information and should be available as inexpensively as possible, without copyright. Since these courts and agencies now all produce their decisions and regulations initially in machine-readable form on their personal computers or whatever, I foresee the Internet as the opportunity to make that possible with minimal cost to the governmental agency, certainly less than traditional publishing. California Senate Bill 1910 in the current session would require the California Office of Administrative Law to put the California Code of Regulations on the Internet. It is a good example of public-minded legislators reminding bureaucrats what their true mission is.

Frankly, I find the copyright arguments of publishers with regard to online services to be a bit vague in a philosophical sense. If copyright is meant to return value (i.e., money) for value (i.e., authoring, publishing and distributing the work), then the only value left after the Internet becomes everybody's publisher and distributor is authorship. In law, the simple use of charges for updates may make the day. In other areas, I frankly have to say that most fiction authors are perfectly willing to write quite a lot without any guarantee of income, in other words, just for the artistic pleasure. And most non-fiction is produced initially to get tenure at a university. I do not worry that the loss of copyright will greatly detriment the progress of civilization.

The new telecommunications laws seem to be coming from legislators who worry too much about maintaining the status quo, when it's gone already. The CDA was an amazingly useful political device for legislators who wanted to reach out to those who are afraid about the new openness we can get from the Internet. Eventually, society will adjust to it. In the meantime, library associations and others defending First Amendment freedoms must remain vigilant to keep too many people from being harmed until the day comes when legislators can make no more political "hay" from such laws.

With regard to security, data protection, and encryption issues, law librarians must worry that the data they receive is the true data. That is why I believe that legislatures and courts will come to maintain their own web sites, so that they can insure that their data is correct. I believe that encryption issues are important for law librarians in that they will want to be sure that the reference they give online is heard only by the intended user.

Having answered many of your concerns, I would like to make one last point of my own. The increase in online and interactive legal information services, coupled with the increase in pro se litigation, has put public law librarians in a rough spot. We now must listen at greater length to the fact situations of our pro se customers in order to aid them with their research on computers, often running the search for them. As we choose the relevant subjects areas and search terms for them, we come ever more closely to what many in the practicing bar consider to be the unauthorized practice of law. Yet, to deny citizens the use of legal materials just because they are online, rather than in hardcopy, may well be to deny their First Amendment rights to access to information. Coupled with that is the potential for a suit for malpractice if a customer actually believes that the librarian helping must meet the legal profession's standards for quality of research. These ethical issues are very much in the minds of public law librarians these days. Many of us have asked the American Association of Law Libraries to consider giving ethical guidance similar to that given in some other professions. Interactive services in law create special problems for librarians as they exacerbate these tensions. We find ourselves not only interactive with the computerized service, but more interactive with our customers.