Carl Malamud has been bothered for 25 years by the fact that U.S. case law is locked away from the public’s eyes. As a wonkish graduate student at the Indiana University School of Business in the 1980s, he was forced on occasion to sneak into the law school library to look something up — because the library was for law professors and law students only.
In the years that followed Malamud has scored an extraordinary track record at getting information into the public domain. Thanks to him and other digital activists, in the mid-1990s the Securities and Exchange Commission put the financial filings of public companies online. In the late 1990s, due in part to aggressive lobbying by Malamud, the Patent and Trademark Office made the full database of granted patents and trademarks available and searchable online. Recently, as part of his effort to get the Smithsonian Institution to free up access to its collection of historical images, Malamud bought and downloaded 6,000 images and posted them on the free Web-sharing service Flickr.
But now, at the age of 48, Malamud is ready to head back to the problem that troubled him as a young man, taking on what he calls “the 800-pound gorilla in the room.” Because of the E-Government Act of 2002, which encourages government entities to publish documents online, recent case law has begun to trickle online, aided by the efforts of nonprofit academic groups and corporations. Malamud, however, wants it all online — every federal district and appeals court decision back to the early 20th century. To do so means loosening the legal grip over this information held by Thomson Corp., whose West business unit is publisher of Federal Reporter, Federal Appendix and other publications. (In the interest of full disclosure, ALM Properties Inc., the publisher of IP Law & Business, licenses its content to West, which includes it in its electronic research services.)
In a letter to Thomson North American Legal President and CEO Peter Warwick in August, Malamud threw down the gauntlet. He wrote, “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.” Two weeks later, Thomson deputy general counsel and Vice President Edward Friedland sent a letter back to Malamud highlighting “three categories of original work in the Reporters that West believes are subject to copyright protection,” and signaling Thomson’s willingness to defend its copyrighted intellectual property. If lawsuits fly, Malamud has friends and funding. Backing him in his newest nonprofit venture are Silicon Valley philanthropists such as eBay founder Pierre Omidyar-and, more controversially, Google Inc.
Meanwhile, getting case law into the public domain is becoming a top priority of tech zealots who want to build what they call Web 3.0, or the “semantic Web.” The notion is that Internet users, organized in social networking collectives, can take basic information and build value on top of this information through aggregated wisdom and creativity. “Piling up case law in publicly available archives is only the first step,” says Tom Bruce, director of the Legal Information Institute at Cornell University. He imagines a world in which words in a judge’s decision are hyperlinked to other case decisions, or to academic analysis. And the Internet collective will take over West’s role of making sure that case opinions online stay true to the judge’s words, and that the proper note is added if a case is overruled. “In general, lawyers have been too frightened to want to take case law away from a trusted authority, and the user-generated-data crowd has been too eager to represent [the collective Web wisdom] as a panacea,” says Bruce.
THE PUBLIC DOMAIN
On the face of it, the effort to get case law online should not be complicated. Everyone accepts that the actual words of legal decisions are in the public domain. But case law has been in the control of West so long, and West’s organization of the data has become so accepted, that it is hard to draw the line where the public domain ends and West’s copyright begins.
Historically, before the age of digital networks, circulating judicial decisions was difficult and expensive. In 1971 the government set up Juris, a database of collected federal case law that went back to 1900. Twelve years later, under a mandate by the Reagan administration to privatize as much of government as possible, Eagan, Minnesota-based West Publishing Co. was hired to take over the job of managing Juris.
In a stroke of corporate ingenuity, West developed a proprietary page-numbering system that affixed numbered citation to judicial scripture. Judges loved it. Soon, they required lawyers appearing in their courtroom to not only cite relevant decisions by name when arguing motions, but also the West citation number. The value of West’s work was self-perpetuating. By the mid-1980s, Federal Reporter and other West publications had become near-sacred texts in the legal industry.
In 1993, 10 years after the government outsourced its management of case law to West (acquired by Thomson in 1996), the company announced that it was pulling out of Juris. Its original agreement gave it continued access to the case law database, but it now had something even more valuable: West had indelibly stamped America’s legal code and case law with introductory headnotes, commentary, typographical and grammatical corrections, italicized and boldface emphasis to highlight key passages and indexing. West made money by selling subscriptions to its publications and also by selling additional services to help search and analyze its data. When, in the 1980s and 1990s, competitors like Lexis Nexis and public advocates like Jamie Love of the Taxpayer Assets Project complained and started challenging West’s monopoly on case law, West argued that these “pagination” and value-added elements were copyrighted.
Malamud lives in a rural town in Sonoma, Calif., and has never been much interested in making money. He is the grandson of a famed neuropathologist, and both his parents were scientists: his father, a nuclear physicist and his mother, a physiologist. His first language was French, because he lived in Switzerland and France until he was 5 years old. After his family moved to a suburb of Chicago, Malamud went to an arts academy in Michigan (he plays the trumpet) and later to Indiana University, where he learned he was barely a good enough musician to make the jazz band. He did the course work to get a doctorate in business economics and public policy, but not the dissertation. When he moved to Washington, D.C., he spent his days doing database architecture for the Federal Reserve and his nights attending Georgetown Law School. After a year he dropped out. “I decided that I had learned all I wanted about the law,” he says. “First year is con[stitutional] law and contracts and properties, the real intellectual stuff.”
Malamud’s attention shifted once again to technology-specific networks and databases. He published several books on the subject of network architecture and formed a consultancy. In 1993 he started one of the Internet’s first radio stations. The New York Times ran his picture on the front page and told Ted Turner to move over for the next generation in new media. Nicholas Negroponte, director of the MIT Media Laboratory, told the Times, “It’s a brilliant idea.” Then, according to Malamud, he called up and asked Malamud for his business plan. “What business plan?” Malamud responded. Thanks to his disinterest in cashing in, Malamud decided to make his organization, Internet Multicasting Service, a nonprofit, which, he says, “really disgusted a lot of people,” and ensured that he wouldn’t make the billions earned by other early Webcasters such as Mark Cuban.
After consulting with many government agencies, Malamud established a public interest group with the mission of getting government documents online. He set his sights on the SEC, which maintained a huge depository of regulatory filings by public corporations. The National Science Foundation gave him several hundred thousand dollars to get the data online. “I got a grant from the U.S. government to give to the U.S. government to purchase the data that we had already paid for with our U.S. tax dollars,” says Malamud, chuckling at the irony.
SEC FILINGS AND EDGAR
His friends at Sun Microsystems chipped in some computer equipment. He also spent some of his own money. In 1994 he started putting some agency data online, making some SEC staffers extremely unhappy. At the time, the SEC had a $14 million contract with Ohio-based Mead Data Central (now Lexis Nexis) to manage its EDGAR database and to disseminate the information wholesale. Mead’s efforts, however, were lackluster, and its conflicts came under congressional review. (At the time, Mead also sold EDGAR SEC filings on Lexis.)
Then, after his Web site with SEC data had become very popular, Malamud posted a notice that the “service would terminate in 60 days.” It wasn’t his job to maintain the database, he told visitors to the site. To make it easy for the public to complain, Malamud recalls, he provided links to e-mail Vice President Al Gore, speaker of the House Newt Gingrich, and SEC Chairman Arthur Levitt. In actuality, Levitt didn’t have an e-mail address, so Malamud made one up, collected the e-mails, printed them out, and marched into the SEC’s office the next day and dropped off 15,000 pages of printouts.
A few days later, Malamud and fellow activist Jamie Love crashed an SEC meeting on the future of EDGAR and hijacked the microphone. Many in the audience questioned whether the agency should be subsidizing Wall Street’s thirst for corporate data. Malamud argued that indeed the general public wanted the data.
How much would a public EDGAR database cost the SEC to set up? Did they have enough computer equipment? Malamud answered these questions by loading his station wagon with computers, driving them to the SEC, and configuring their Cisco router and T-1 connection. “You have to show by doing,” says Malamud. “Here’s the important thing: Make them own it, and at the end of the day they’ll be happy.”
House of Representatives telecommunications subcommittee Chairman Edward Markey says Malamud’s efforts “spurred the democratization of government information,” while others credit him with introducing a whole new class of investors into the stock market. Higher powers also took notice. When Malamud wrote a book about his efforts organizing an Internet World Exposition in 1996, the Dalai Lama wrote the introduction, praising Malamud and his work of increasing transparency in government.
Today Malamud is more willing than ever to shame an adversary, making him more of a hero to some and unpleasantly abrasive to others. Last year Malamud agitated for getting congressional hearings online. C-SPAN claimed copyright. So Malamud sent an open letter to C-SPAN CEO Brian Lamb where he lectured, “You should not treat the U.S. Congress like Disney would treat Mickey Mouse.” The letter was publicized on the blog boing boing, a favorite of the technorati. When C-SPAN changed its policy and put the video online without copyright, Malamud won boing boing’s plaudits.
Malamud certainly won’t be the first to challenge West’s dominance over case law. In 1985 the company sued Mead Data Central in U.S. district court in Minnesota after Mead tried to use West’s page number system in its own legal database, Lexis. (Mead countersued with an antitrust suit in Ohio district court.) West relied on the already established “sweat of the brow” doctrine that gave copyright to anybody who employed significant effort and time compiling public material. The district court, and later the U.S. Court of Appeals for the Eighth Circuit, affirmed West’s copyright and ordered an injunction against Mead. The two companies later signed a confidential settlement that reportedly gave Lexis a limited license to use West’s copyrighted materials.
But six years later, in 1991, the U.S. Supreme Court seemed to invalidate “sweat of the brow” as a legal doctrine in Feist Publications, Inc. v. Rural Telephone Service Co. In that case, Rural argued that Feist had violated copyright by pirating Rural’s telephone listings to include in its own phone directory. The Supreme Court disagreed, ruling that information itself is not “original,” and, therefore, not copyrightable. Justice Sandra Day O’Connor left the door slightly ajar by stating that there might be creative aspects in organization of “collections.”
These two court cases set the stage for a major showdown in 1994. Matthew Bender & Co. and intervener HyperLaw sued West in federal district court in New York, looking for a declaratory judgment that West’s federal law publications were not copyrighted. Bender wanted to include a copy of case law with its treatises of analysis. HyperLaw was looking to sell case law on CD-ROM. Both claimed “a reasonable apprehension of litigation.”
Each side brought in top IP litigators. On Bender’s side, Irell & Manella partner Morgan Chu led the cause. On West’s, Jeffrey Kessler, now a partner at Dewey & LeBoeuf, led a team that included prominent law professor Arthur Miller.
West’s lawyers tried to get the case dismissed on grounds that the court had no jurisdiction, and that the issue was moot since HyperLaw had no intention of copying West’s case law and there was no real threat of suit. Chu says now that West’s strategy was “to get the case to Minneapolis, where they had precedent and the hometown company was beloved for their very admirable charitable endeavors.”
The fight was nasty, with West attempting to impose sanctions on the plaintiffs. There were numerous appeals. In 1997 Judge John Martin, Jr., ruled that West’s citation system displayed insufficient creativity to be protectable. The following year, the U.S. Court of Appeals for the Second Circuit affirmed the judgment. The Supreme Court denied cert.
“West’s monopoly pricing is finished,” a lawyer for HyperLaw told The New York Times. “You are about to see the price of legal research spiral downward,” predicted another legal publisher.
But it just didn’t happen.
For the next decade, nobody ran with the ball. HyperLaw mostly faded away. West cheered the fact that the court had at least deemed its headnotes as copyrighted, and, what’s more, didn’t signal retreat on any of its copyright claims. Asked today what copyrighted elements could be deleted if someone wanted to scan the Federal Reporter, Thomson Executive Vice President Rick King says he’s not sure. “This gets into gray areas,” he says. “The content itself is in the public domain. But if someone takes it and scans it in, I don’t know if courts have decided that issue.”
Current decisions are appearing freely online, if in a somewhat piecemeal manner. In addition to the spotty efforts of the courts themselves, some public and private enterprises have also been posting court decisions. AltLaw, a joint effort by Columbia Law School and the University of Colorado Law School, has put the last decade of federal appellate and Supreme Court opinions online, permitting free full-text searches. Justia Inc., a Palo Alto, Calif.-based company, has also started going down to courthouses and scanning judicial decisions for online use. (The company hopes to make money by offering other services, such as custom-designed Web sites for law firms.)
Those efforts may not go far to grab historical case law, particularly judicial decisions between 1923 and the end of the 20th century. So this year, after talking with lawyers and technologists at technology-trade publisher O’Reilly Media (with whom he shares office space), Malamud formed a new nonprofit called Public.Resource.Org and started purchasing previously scanned case law. “I brought my credit cards up to $40,000 in debt,” he says, “and just last week finally brought in enough foundation money that I was able to pay myself my back salary.”
THE FASTCASE DEAL
Malamud has put out the call to buy case law scanned from courtroom files. In November he announced a deal with Washington, D.C.-based Fastcase Inc., that will provide him 1.8 million pages of federal case law, including all appeals court decisions from 1950 to the present and the full archive of all Supreme Court decisions. “Carl is a guy who is very impatient with things that don’t make sense, which I totally get,” says Ed Walters, CEO of Fastcase, which makes its money on value-added searching services.
The Fastcase deal is a start, Malamud says. But to achieve his ultimate objective, he may need to use the West publications he has already started scanning. So in mid-August Malamud sent the letter to West asking it “for guidance on the subject of where the public domain stops.”
In its reply, West set out the three categories of work it believes are its IP. The first category included introductory material and headnotes, where no one would argue with West’s copyright. The second category included “West’s editorial enhancements” (annotations, revisions, and amplification of citations). The third category included “West’s selection and arrangement … of the individual case reports,” which raised yelps from lawyers who represented Bender.
“That’s an outrage,” says Chu, who was asked by IP Law & Business to comment. “[Thomson] seems to be taking the position that because our [Bender's] case was the only court to address the issue, they can ignore it. But it [the appellate court] happens to be one of the most respected courts in the U.S., especially on copyright issues. They seem to be thumbing their nose at the Second Circuit.”
Malamud says sending his letter was part of a calculated strategy, developed in consultation with lawyers at the Electronic Frontier Foundation, Stanford law professor Lawrence Lessig and others. If Malamud does decide to go ahead and use the scanned work, the team will borrow from Bender’s playbook and file a motion for declaratory judgment in California.
Malamud certainly has plenty of critics. HyperLaw founder Alan Sugarman, who was instrumental in pushing the Bender suit forward, calls Malamud’s efforts a “PR stunt” and thinks he should instead push judicial circuits like the U.S. bankruptcy courts to get their act together and publish their documents online. Sugarman worries that Malamud is “enabling the courts to palm off their own responsibilities.”
Others don’t see the lack of online case law as much of a problem. “I haven’t heard any complaints from any lawyers on having access to the law,” says Jeffrey Kessler, who no longer represents West.
And as word gets around that Google is funding Malamud’s effort to wrest case law from West, critics are sure to charge that he is merely a stalking horse for the search giant’s colossal ambitions. Google, the wizard of Internet distribution, has found copyright to be its enemy on many fronts, from video to books.”[CEO] Eric Schmidt and [VP] Vinton Cerf think I do good work,” says Malamud. “They didn’t buy the mission or anything.” Google isn’t commenting, but what would stop it from creating a business selling ads against pages of case law?