August 20, 2007
A Quest to Get More Court Rulings Online, and Free
By JOHN MARKOFF
NY Times
http://www.nytimes.com/2007/08/20/technology/20westlaw.html?ref=technology&pagewanted=print
SEBASTOPOL, Calif., Aug. 14 The domination of two legal research services
over the publication of federal and state court decisions is being
challenged by an Internet gadfly who has embarked on an ambitious project
to make more than 10 million pages of case law available free online.
The project is the latest effort of Carl Malamud, an activist who founded
public.resource.org in March, with the broad intent of building public
works accessible via the network, and with the specific plan to force the
federal government to make information more publicly accessible.
Last week, Mr. Malamud began using advanced computer scanning technology to
copy decisions, which have been available only in law libraries or via
subscription from the Thomson West unit of the Canadian publishing
conglomerate Thomson, and LexisNexis, a division of Reed Elsevier, based in
London.
The two companies control the bulk of the nearly $5 billion legal
publishing market. (A third, but niche, player is the Commerce Clearing
House division of Wolters Kluwer).
He has placed the first batch of 1,000 pages of court decisions from the
1880s online at the public.resource.org site. He obtained the documents
from a used Thomson microfiche, he said.
Mr. Malamud, who is a self-styled Robin Hood of the information age, has
confounded executives and administrators at organizations as diverse as the
Smithsonian Institution, the House of Representatives and the Commerce
Department by asserting the publics right to government information and
then proceeding to digitize it and place it in the public domain.
I dont mind people making billions, Mr. Malamud said, but I hate
barriers to entry.
Mr. Malamud has a significant track record in battling publishers over
public information. In 1994 he began a crusade that ultimately persuaded
the federal government to make records from the Securities and Exchange
Commission and the Patent and Trademark Office available online to the
public at no cost.
He said the free availability of that digital information did not undercut
the businesses that were making money from the information at the time.
The market for commercial services based on those databases actually
increases once the core underlying data has been made widely available, he
wrote in a letter to the chief executive of Thomson North American Legal
last week, informing the company of his actions.
Mr. Malamud is not the first person to attempt to unravel the control of
West and LexisNexis. The issue of whether the companies have copyright
protection over the published and online versions of the legal research
reference materials led to legal challenges in the 1980s and 90s. During
the 90s, a New York lawyer, Alan D. Sugarman, successfully challenged
West, winning a ruling in a copyright protection lawsuit. However, Mr.
Sugarmans company, Hyperlaw, ultimately failed.
It cost me a lot of money, and when it was all said and done I was wiped
out financially, so I went back to the practice of law, Mr. Sugarman said.
Wests electronic and print influence over the legal profession became so
valuable that Thomson paid $3.4 billion for the company in 1996. The West
books contain major court decisions, and they have been adopted as the
standard in the nations courts and law firms, and the West method of
identifying cases has remained the standard for citations in decisions and
legal briefs.
However, Mr. Malamud and a diverse group of backers argue that the control
of publishing court rulings subverts the original intent of the framers of
the Constitution by making the nations laws difficult to obtain by those
outside the legal profession.
In a letter to West Publishing last Wednesday, Mr. Malamud said his intent
was to make federal and state court decisions available to a population
that cannot afford the subscription costs.
Legal codes and cases are the operating system of the nation, he said.
The system only works if we can all openly read the primary sources, he
said in the letter. It is crucial that the public domain data be available
for anybody to build upon.
John Shaughnessy, a spokesman for Thomson, said: We have received the
letter from Public Resource and Mr. Malamud raises a number of interesting
but complex points. We are looking at them now and then will be in touch
directly with Mr. Malamud.
The Public Resource effort is one of several attempts to make the nations
laws more accessible. One project, AltLaw (altlaw.org) is a joint effort by
Columbia Law Schools Program on Law and Technology and the Silicon
Flatirons program at the University of Colorado Law School to permit free
full-text searches of the last decade of federal appellate and Supreme
Court opinions.
Im a legal academic and I woke up one day and thought, Why cant I get
cases the same way I get stuff on Google? said Tim Wu, a Columbia law
professor who is one of the leaders of the project. People should be able
to get cases easily. This is a big exception to the way information has
opened up over the past decade.
The challenge faced by the various public interest and commercial efforts
is the lack of standardization in the court system that makes it a
technical nightmare for those who want to place information online for the
public.
There is supposed to be no ignorance of the law, and yet its not even
accessible to most people, said Tim Stanley, the chief executive of
Justia, a Palo Alto, Calif., provider of online information.
Justia is spending about $10,000 a month to send people to copy documents
at the Supreme Court so the company can place it online for free access, he
said.
The unifying vision of all of the challengers to the current system is a
Wikipedia-like effort to make the nations laws freely searchable by
Internet search engines. They believe this will lead to a public system of
annotation of the laws by legal scholars as well as bloggers, giving the
American public much richer access to the nations laws.
================================
George Antunes, Political Science Dept
University of Houston; Houston, TX 77204
Voice: 713-743-3923 Fax: 713-743-3927
antunes at uh dot edu