Another attempt is being made to bypass West and Lexis-Nexis and make court rulings available online for free – and it’s coming from Sebastopol.
Carl Malamud is an Internet activist whose offices are in the Sebastopol complex owned by publisher Tim O’Reilly. For more than ten years he has been battling companies and institutions to put documents online that were “public” but not readily available. He has already tangled with the Smithsonian Institution, the House of Representatives and the Commerce Department. It is because of his efforts that the Securities & Exchange Commission’s Edgar database is online (he ran the online version for two years until the SEC took it over), and he was the moving force to get information online from the Patent & Trademark Office. His current web site is the rudimentary Public.Resource.org.
West Thomson and Lexis-Nexis control the five billion dollar legal publishing market, built on publishing laws and court decisions that are public information. The publishers have gone to great lengths to prevent others from making this public information available to the public. Both companies claim that they add elements to the cases and laws and thereby obtain copyright protection for the materials – West with its key number system and headnotes, for example, and even the pagination assigned by the publishers and required by the courts for citations. There were challenges to the copyright claims in the 80s and 90s, but even a successful challenge in the 90s led nowhere when the successful litigant subsequently ran out of money.
The result is that our laws are inaccessible to the public, one of the few things that you cannot search for on Google. Malamud has approached the publishers and described his vision of the law as a public resource. West and Lexis don’t have to stop adding value and selling their expensive subscriptions, and in fact their permission is not required – this is public domain information which Malamud is free to place online if he can acquire it from a non-protected source. But his effort is more likely to be successful if the publishers are not actively hostile, and they have been defensive and quick to attack in the past.