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Law in the Internet Society
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Duopoly materials
53 Vill. L. Rev. 1, 24A. Lexis and Westlaw It was only a decade ago that a serious alternative to libraries of print law reports became available to judges, lawyers and others in the United States. 96 Although the two major online services (LexisNexis? and Westlaw) date back to the 1970s, they served as case-finding tools for most of their history. They supplemented but did not substitute for print reports. In their infancy, both were costly proof-of-concept services with serious scope limitations. 97 Launched in 1969, Lexis was, by 1976, offering federal case law reaching back fifty-one years for the Supreme Court, thirty-one years for the U.S. Courts of Appeals and sixteen years for the [*20] District Courts. 98 But its state materials were meager - comprehensive but chronologically thin collections for nine states, plus a selection of Delaware corporate law decisions. 99 At roughly $ 125 per hour, this package drew few subscribers. 100 Westlaw in these early days avoided any risk of displacing West's print publications by offering only headnotes. 101 Its depth was eight years for the states and fifteen years for federal cases. 102 By the mid-1980s, a Lexis threat to add star pagination to its case data, keyed to West's National Reporter System, raised the prospect of researchers working mostly, if not totally, from electronic versions of the print volumes. That provoked a West copyright suit. 103 By the time the parties settled their litigation in 1988 with a cross-licensing agreement - allowing Lexis (at a heavy price) to insert West pagination in its database - Westlaw had itself added pagination. In the meantime, access to both systems had moved from large terminal and printer installations in libraries, first to desktop terminals and then to PCs with modems. 104 The scope of their collections had been expanded; both held reported cases from all fifty states. Limited historic depth, however, still forced researchers to the books for older cases. Lexis reached back at least to 1965 for all states, further for some like New York (1940), California (1945) and its home state of Ohio (1921). 105 Westlaw's retrospective coverage was comparable. 106 By 1989 both Lexis and Westlaw featured online cite-checking. 107 Around the same time, both companies declared their intent to provide full fifty-state statutory coverage. 108 [*21] It was not until the mid-to late 1990s that these systems attained sufficient scope and functionality to become comprehensive research environments - virtual libraries - rather than simply places to begin case research. A series of changes, due largely to external developments and pressures, led to online case reports becoming not only a plausible substitute for the print originals, but a compelling (albeit still costly) alternative. In the early 1990s, competition from CD-ROM-based legal research products spurred several key software improvements. One was the hyperlink reference, standard in early law CD-ROMs, but difficult to transplant onto the character-based, non-scrolling terminal interface with which Lexis and Westlaw users had to cope. Lexis first employed "link markers" set off in brackets adjacent to citations (e.g., <=160>). To follow such a reference, the user had to key in the bracketed formula (e.g., "=160"). 109 Link markers eventually morphed into link tokens to which a user could jump by striking the tab key. 110 Finally, as lawyers and judges migrated (ever so slowly) to a Windows interface, link markers became links operated by means of a mouse. Links made it far easier to leap from one text to another than had ever been possible in print. Even so, online research systems remained dramatically inferior to print as a reading environment or print source. First, reading an online case on a PC required the reader to page through the case screenful by screenful. Moreover, downloading proceeded in similarly small increments, and generating print copies was both clumsy and often inadequate. By contrast, CD-ROM case law products permitted users to extract cases formatted as word-processor documents. While Westlaw and Lexis eventually responded, 111 scrolling up or down through the full text of an opinion and saving or printing it in its entirety only became fully possibly in 1998 once both systems moved to the World Wide Web and a standard Web browser (rather than proprietary software) interface. 112 This new WYSIWYG window on decisions required [*22] Internet access at sufficient bandwidth to allow opinions to be delivered in full, rather than screen-sized chunks. Moreover, the shift required major investments in both software and data throughout what by then had become quite large systems. Neither database had been built with the demands or potential of this new environment in mind. 113 B. New Players in This New Environment At roughly the same time that Westlaw and Lexis were successfully putting case law research on the desktops of lawyers practicing in large firms, new players with new business models were beginning to bring electronic case law within the budgets of small firm lawyers. Here too, CD-ROM technology was an important catalyst. Throughout the early 1990s, Westlaw and Lexis offered more than most small firm lawyers needed, at prices they could not afford. Both companies charged in ways that made their services unattractive to those making repeated use of a single state's cases and statutes. In 1995, Law Office Information Systems (LOIS) began selling state-specific CD-ROMs for a flat price of $ 600 per year. 114 By 2000, a striking array of less costly research options was available to U.S. lawyers. All were specifically designed and priced for attorneys practicing in small firms. LOIS - by then Loislaw - had moved to the Internet and expanded to all fifty states. In some jurisdictions, Loislaw was under-priced by small CD-ROM publishers. VersusLaw? , another online research alternative, offered a national online case law library priced at only $ 83.40 per year for a solo practitioner. 115 Lexis and Westlaw had themselves created fixed rate plans designed and priced specifically for small firms. 116 [*23] By then, public, non-profit and advertising-supported sites had begun providing judicial opinions and other legal documents over the Internet without charge. More recently, state bar organizations have become major players in the case law dissemination picture, contracting on behalf of their members with a still newer set of commercial providers. The "Casemaker" consortium, established by the Ohio Bar Association and a small electronic publisher, is leading this development. Bar groups joining the consortium provide Casemaker's online service to their members without charge. Currently, Casemaker claims twenty-eight state bar association members. 117 The Kansas State Bar is a recent addition to the group, having introduced this service to its membership in late 2006. 118 Fastcase, another recent entrant, also uses this business model (as well as a search engine that has learned some lessons from Google). 119 In the past three years, Fastcase has signed up ten state bar associations, plus a number of local or specialty bar associations and membership libraries. 120 As the legal information market sped through these rapid changes, networked computers moved to the desktops of nearly all lawyers and judges, providing them with writing spaces, communication channels, and scheduling and management tools. Print publishing itself was transformed. Once courts began producing opinions on computers, companies that published print law reports sought and acquired access to electronic rather than hard copy versions of those opinions. Electronic publishers, including the new entrants, pressed for the same. The cumulative result of these developments is a fully electronic legal research environment that is quite new. As recently as 1995, lawyers, especially those a decade or more out of law school, relied heavily on printed reports when researching case law. 121 Today, virtually all writing by lawyers [*24] and judges - whether memoranda, briefs or judicial opinions - is composed and revised on a computer. Most case law research is done on a computer as well. Quotations are copied from digital sources, rather than rekeyed. Lawyers, young and old, write briefs without ever pulling a law report volume from the shelf. Libraries pressed for shelf space and funds have ceased acquiring new volumes 122 and even sought to rid themselves of old ones. 123Political Economy SourcesFree labor, costly journals (Bergstrom 2001)
Law as propertyWho owns the law?, NYTimesElsevier infohttp://www.google.com/url?sa=t&source=web&ct=res&cd=3&url=http%3A%2F%2Fwww.citywire.co.uk%2FPersonal%2F-%2Fnews%2Fmarkets-companies-and-funds%2Fcontent.aspx%3FID%3D202651&ei=L3sFSbfFC4GueY6r-ekN&usg=AFQjCNFAoN0NZgsY-F6e8UYnzAAWSP7L0w&sig2=QBpX6_hrSO_W7u1VAnZkWQ http://www.google.com/url?sa=t&source=web&ct=res&cd=4&url=http%3A%2F%2Farticles.latimes.com%2F2003%2Foct%2F14%2Fbusiness%2Ffi-trades14&ei=L3sFSbfFC4GueY6r-ekN&usg=AFQjCNGQGvI7glR-c8XoAdnCIOLe3YbTSQ&sig2=bNq8c6fGXd9hWPEOXTCaGQ https://www.thedacs.com/techs/abstract/324301 http://findarticles.com/p/articles/mi_m0EIN/is_/ai_59540527 http://rafaelsidi.blogspot.com/2006/01/reed-elsevier-among-top-uk-spenders-on.html (Elsevier spend $13 million over 8 years in lobbying US government) http://practicesource.com/house-of-butter/reed-elsevier-spent-us790-000-in-q.1-08-lobbying-us-federal-government.html ($US790,000 In Q.1 08 Lobbying US Federal Government) http://www.opensecrets.org/lobby/clientsum.php?lname=Reed+Elsevier+Inc&year=2008 (Elsevier lobbying history) http://www.nature.com/nature/journal/v429/n6993/full/429687a.html (Elsevier axed story under IBM pressure - published in Nature!) http://chronicle.com/free/v49/i18/18a02701.htm (Elsevier removes articles from sciencedirect without explanation)
10 Lewis & Clark L. Rev. 901, 917The commercial database model obviously can't match that aura step-for-step, since the databases include so much non-scholarly legal literature. Westlaw's JLR database includes PLI and ALI-ABA course materials as well as the Yale Law Journal. But the relative exclusivity of the databases does have that effect. Pricing models differentiate between practitioners, on the one hand, and law schools and judges' chambers, on the other. Practitioners often pay metered rates for access to the database; law schools pay a flat rate. Unlike practicing lawyers, law professors can search and use the databases at no marginal cost. It feels free. We're inside the scholarly system again, and the rest of the world is outside. Heller, The Gridlock Economy Stake, "The Property Instinct"Legal Search siteshttp://www.loislaw.com/ http://www.findlaw.com/ http://www.fastcase.com/
trashIt would be argued that law has expressive, aesthetic content and is thus deserving of copyright. By virtue of the fact that some judges, as composers of legal materials, [[cite]evidently believe this, there is some truth to the argument. But it is an unfortunate attitude, and it has deleterious effects on the quality of the fruits of legal enterprise. Law should be conceived as software code rather than poetry, written by legislators, compiled by the executive, and debugged by the courts. This metaphor offers hints as to how problems with the legislative versus executive versus judicial process should be dealt with. For example, as illustrated in [[cite][Anarchism Triumphant], anarchical production of software code is a superior strategy, and it should be applied to the production of legislation. The [[cite][GPLv3 process] is a preliminary example of an anarchical legal drafting process. When law is proprietized, an obvious concern would be manipulation of the law by its private owners for their personal benefit. It would be rational, supposing low probability of the infraction being publicized, for Elsevier/Thomson to tamper with case law concerning company litigation. In a competitive legal-information marketplace, objectivity would be an overriding concern, because competitors would publicize infractions and keep each database honest. But here, we have duopoly, and that invites collusion. There has been little, if any, investigation into whether Thomson and Elsevier have attempted such manipulation. An investigation into whether cases in which Elsevier/Thomson (and subsidiaries) are parties are characterized by statistical differences in the database's meta-information is in order. What we do know, in the meantime, is that Elsevier has, at least once, manipulated a scientific medical publication for economic reasons. The problems with Lexis and Westlaw are representative of the more general problems associated with the proprietization of functional knowledge. Bergstrom (2001) showed that nonprofit economics journals were generally superior to commercial economics journals, despite the fact that similar commercial journals charged almost ten times as much for subscriptions to their journals. Law journals should be the first organizations to sign onto the free-law effort. Since they are locked in libraries and . On the one hand, this circumstance protects them from being widely read and thereby condemned for incompetence. But, as demonstrated in Chris Anderson's The Long Tail, there is demand, however small, for a virtually infinite range of creative and functional content (pg. ). By unlocking the storage and meta-connection of law journal articles, the free-law effort would facilitate the synthesis of wider blocks of information and argument. Another objection to the free platform is that private actors would manipulate the meta-information to sabotage opposing legal actions. Wikipedia, again, is a testament to the growth of internal safeguards against abuses. -- ElliottAsh - 08 Nov 2008 The effectiveness of a distribution system can be measured by its cost. The ineffectiveness of the old-world music distribution system was illustrated by the share of its revenues that went to feeding the distribution system, rather than the content-production system. The same can be said of Lexis and Westlaw--In 2005, Lexis managed revenues of $8.94 billion with a 23.1% profit margin. -- ElliottAsh - 08 Nov 2008 |
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