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Crashing the Wexis Gate

Long, long ago, in a land far, far away, access to the SEC's EDGAR database of corporate filings was available only by subscription through proprietary services such as Mead Data Central, the former owner of LexisNexis. Then came the seemingly quixotic Carl Malamud and his nonprofit Internet Multicasting Service, which in 1994 began offering the EDGAR database of corporate filings free via the Internet. A year later, as IMS's funding was about to expire, Malamud urged the SEC to continue where IMS would leave off. At first, the SEC hedged, but in August 1995, then Chairman Arthur Levitt agreed to take on the task of providing free Internet access to EDGAR. It was a turning point that paved the way for the future of government information on the Web (as I first noted a decade ago).

We've come a long way since then in achieving free and easy public access to government information online. But in the publication of federal and state court decisions, two private companies still control access and set the price of admission. And Malamud, once again, is leading the charge against the gate. Through the organization, Malamud has set out to create in the short term "an unencumbered full-text repository of the Federal Reporter, the Federal Supplement and the Federal Appendix" and, eventually, a full-text repository of all state and federal cases and codes. His intent, he wrote in a letter to West, is not to compete with commercial vendors.

"Rather, we wish to make this information available to a population that today does not have access to the decisions of our federal and state courts because they are not commercial subscribers to one of the handful of services such as your award-winning Westlaw tools. Codes and cases are the very operating system of our nation of laws, and this system only works if we can all openly read the primary sources."

Earlier this week, Malamud began to publish the first cases of his repository. It was sufficiently newsworthy to merit coverage from The New York Times and commentary by Tim O'Reilly.

Malamud's letter to West asks it to clarify the extent to which it claims copyright in published decisions. This has been an issue of dispute time and again. In a 1990 New York Times piece, Progress Spawns Question: Who Owns the Law?, Linda Greenhouse reported on the star-pagination lawsuit between West and Lexis that ended with a closely guarded settlement agreement rather than a definitive court decision. A 1990 suit between startup Web publisher and LexisNexis similarly ended in a copyright by contract settlement agreement.

Although Malamud asks West to clarify its copyright, he also invites the company to take the high road and simply release the full text of federal cases. "You have already received rich rewards for the initial publication of these documents," he wrote, "and releasing this data back into the public domain would significantly grow your market and thus be an investment in your future." I doubt Wexis would throw open its gates that easily, but why not? The value of Westlaw and Lexis is less and less in the cases -- especially as courts post their own decisions directly and services such as FindLaw (which is owned by West) and Justia offer easy access -- and more and more in the secondary reference materials unavailable elsewhere online. For either West or Lexis, giving up old cases to the public domain would have the PR benefit of appearing to be a heroic gesture while having little negative impact on the long-term bottom line.

Besides, it is the right thing to do, just as it was when Malamud convinced the SEC to do it a dozen years ago.

Posted by Robert J. Ambrogi on August 23, 2007 at 05:04 PM | Permalink | Comments (0)


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